MUNGADI v. ACCESS BANK (2020)

MUNGADI v. ACCESS BANK

(2020)LCN/13982(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Friday, March 20, 2020

CA/S/116/2018

Before Our Lordships:

Ahmad Olarewaju Belgore Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Between

HON. UMAR ISAH MUNGADI APPELANT(S)

And

ACCESS BANK PLC RESPONDENT(S)

RATIO

DEFINITION OF A BANKER’S ACCEPTANCE

The Black’s Law Dictionary, 8th Edition defines the Banker’s Acceptance as…”A bill of exchange drawn and accepted by a Commercial bank; Banker’s acceptance are often issued to finance the sale of goods in international trade.” To rather simplify what the Banker’s acceptance is all about, it may be appropriate to state that simply that it is short-term money market instrument that comes handy in business transactions as it helps to eliminate risks. Basically, it is a time draft that a business or an individual or customer to a Bank can get from the Bank as an extra cover against counter risk. In a typical transaction as it has occurred in the instant Appeal, the Bank makes an offer of cooperation with certain conditions. For instance, it offers loans at a certain satisfying interest rate. The Customer appreciates the offer as in the instant Appeal and when the Customer decides to meet or fulfill the mentioned conditions, the offer is therefore considered accepted. In the instant Appeal, at the core of a host of other terms and conditions was the payment by the Customer, who is the Appellant herein, of an equity participation of N20 million. PER OHO, J.C.A.

DEFINITION OF SHARES

Section 650 (1) of the Companies and Allied Matters Act, defines “Share” as the; “interest in a company’s share capital of a member, who is entitled to share in the capital or income of such a company; and except where a distinction between stock and shares is expressed or implied, includes stock”.
Against the background of forgoing, the exact juridical nature of the share under the Companies and Allied Matters Act, is that shares, when purchased as in the instant Appeal, represents only a basis for the calculation of or distribution of profits, by means of dividends and that the members, must pay for them. In the often quoted definition of FARWELL, J in BORLAND’S TRUSTEES vs. STEEL BROTHERS & CO. LTD (1901) 1 Ch. 279 and by virtue of Section 114 of the Act, the shareholder’s interest consists in the rights and duties given and imposed by the company’s Articles of Association and this does not in any way include the refund of sums expended in buying the shares in question. In the final analysis, this Appeal is moribund and it is accordingly dismissed. The parties are to bear their respective costs. PER OHO, J.C.A.

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kebbi State High Court of Justice, Birnin Kebbi Judicial Division in Suit No: KB/HC/29/2010 and delivered on the 18th day of April, 2018 by ABBAS AHMAN, J., wherein the Court gave judgment in favour of the Respondent.

The Appellant as Claimant before the Court below vide its Amended Statement of Claim, claimed against the Respondent as Defendant as follows:
a. A declaration that the Defendant has failed to comply with the terms and conditions of the transaction as contained in the offer letter of 5th February, 2008.
b. The refund of the sum of N20,000,000 (twenty million Naira) to the claimant, having failed to utilize same for the purpose meant in the offer letter of 5th February, 2008.
c. Interest at the current bank rate on the sum of N20,000,000 (Twenty Million Naira) from the 5th day of February, 2008 till the date of judgment and until the judgment sum is fully liquidated.
d. N20,000,000 (Twenty Million Naira) damages for breach of contract.

The Judgment of the Court below is contained at pages 212 to 237 of

the Record of Appeal. Dissatisfied with the judgment, the Appellant who was Claimant has appealed to this Court by filling a Notice and Grounds of Appeal as contained in pages 294 to 297 of the Records of Appeal.

The facts giving rise to this Appeal are that sometime in February 2008, the Respondent approached the Appellant with a business proposal for the transaction of buying and trading in the shares of Blue Chip Companies from the Nigerian Stock Exchange. The total capital outlay for the transaction was the sum of N100,000,000.00 (One Hundred Million Naira) for which the parties were expected to fund. Out of this amount, the Appellant was to provide N20,000,000.00 (Twenty Million Naira) only, representing 20% of the sums required. The tenure of the transaction was for a period of 12 months, whose duration was to expire early in 2009. See pages 238 to 240 of the records of Appeal.

All said and done, the Appellant’s contention is that the purposes for which the facility was put together, was completely disregarded by the Respondent as the contract binding the parties i.e. Exhibit “A” specifically mentioned Blue Chip Company

Shares; that while the Appellant contributed what was required of him, i.e., the said N20,000,000.00 (Twenty Million Naira) only; representing 20% of the amount and waited patiently for the Respondent to discharge its own part of the obligation, this was not to be. The Appellant also contended that he wrote series of letters demanding to know the position of the contract/business but that the Respondent refused and/or neglected to reply any of the letters. See pages 241 to 242 of the records of appeal.

After waiting a period of three (3) years, to no avail, the Appellant approached the Court below for remedy vide a suit filed under the Undefended List Procedure and judgment was given in his favour. Dissatisfied with the judgment of the Court below, the Respondent appealed to this Court and judgment was entered in its favour and the Court below ordered to re-hear the suit and accord the Respondent a chance to defend the claims of the Appellant.

On the 18th day of April, 2018 the Court below adjudged the Appellant’s claims unmeritorious and dismissed same. See pages 212 to 237 of the records of appeal. Dissatisfied with that decision the

Appellant filed an Appeal before this Court challenging the decision of the Court below. There are four Grounds of Appeal filed. See pages 294 to 297 of the records of appeal.

ISSUES FOR DETERMINATION
The Appellant nominated three (3) issues for the determination of this Appeal from the four Grounds formulated as follows;
1. Whether the Appellant proved his case from the evidence before the Court, to be entitled to Judgment in his favour regard being had to the agreement of the parties as contained in Exhibit ‘A’, tendered before the lower Court. (Grounds one and three).
2. Whether the Judgment of the Lower Court amounts to a miscarriage of Justice in that the Appellant is left without a remedy having regard to his right under the Agreement in Exhibit ‘A’, the contents of which the Respondent had not complied with. (Ground two).
3. Whether the Respondent performed its part of its obligations under Exhibit ‘A’. (Ground four).

On the part of the Respondent, a sole issue was nominated for the determination of this Appeal thus;
“Whether or not from the totality of the lower Court’s

review of the facts and laws, the Judgment is sustainable”.

SUBMISSIONS OF LEARNED COUNSEL
APPELLANT:
ISSUE ONE:
Whether the Appellant proved his case, from the evidence before the Court, to be entitled to Judgment in his favour regard being had to the agreement of the parties as contained in Exhibit ‘A’ tendered before the lower Court.

In arguing this issue, Learned Appellant’s Counsel submitted that in civil matters the burden of proof lies squarely on he who asserts. He referred to the case of A. G. KWARA STATE vs. LAWAL (2017) 70 NSCQR PG. 444 @ 450. According to Counsel, the Appellant and the Respondent called a witness each and that the evidence of the Appellant, testifying on his behalf is at pages 193 to 196 while that of the Respondent’s sole witness is at pages 204 to 208 of the records of appeal. It was the contention of Counsel that the Appellant and the Respondent are in complete agreement that the terms of Exhibit ‘A’ is binding on the parties.

The further contention of Counsel is that this case is based on the performance or otherwise of the terms and conditions of Exhibit ‘A’ and that in the course of his evidence, the Appellant testified that he agreed to the terms of Exhibit ‘A’ and went ahead to perform his side of the obligations therein as follow;
1. He paid the required sum of N20,000,000.00 (Twenty Million Naira) Only, to the Respondent.
2. He was not required to do anything more than that.
3. After 12 months, as per Exhibit ‘A’ and when he found out that the Respondent was doing nothing he tried to contact the Respondent and met a brick wall.
4. The Respondent undertook by Exhibit ‘A’ to do all the purchasing and trading in the shares to be purchased by the Respondent.
5. The Funds were never put in possession of the Appellant (The Respondent’s witness stated as much in his evidence).
6. More than 9 years after the agreement was entered into, the Appellant did not get any reaction even after he went to Court.

The argument of Counsel is that on the part of the Respondent, after collecting the sum of N20,000,000.00 (Twenty Million Naira) Only, from the Appellant, it did nothing else. Counsel further argued that apart from the doubtful claim that the Respondent bought shares, nothing else was done. In assuming, therefore but not conceding that the Respondent bought the shares envisaged by the terms of Exhibit ‘A’, Counsel was of the view that the obligation of the Respondent did not come to an end as per Exhibit ‘A’. Against this position, he drew attention to the facts that under the terms of the said Exhibit ‘A’, the following issues were still outstanding;
a) The duration of the entire business was to be in 12 months, but 9 years thereafter nothing happened.
b) The purchasing and selling of shares was to be done entirely by the Respondent; that no share was sold assuming any was bought. That was the essence of the whole agreement – the spirit and soul of Exhibit ‘A’.
c) The purported purchase of shares did not show that it complied with the requirement of Exhibit ‘A’ as:
– They were not Shares of blue chip companies
– They were not Shares purchased from the Nigerian Stock Exchange
– They were not Shares bought in “the joint names of the Appellant and Respondent”.

It was further argued that none of the above express requirements of Exhibit ‘A’ amongst others was complied with and that this is even clear from the evidence of the Respondent’s witness, when he said that he does not know the meaning of the entire scheme called by the Respondent.
“I don’t know the meaning of Bankers Acceptance Discounted as per Exhibit ‘A’ (See page 206 of the Record of Appeal).”

Apart from the foregoing, this Court was told how the sole witness of the Respondent answered in the negative as to whether any express conditions in Exhibit ‘A’ was performed by the Respondent. The Court was further told how the Appellant tendered the original copy of Exhibit ‘A’, which the Respondent agreed was the binding document between the parties, even though the Respondent failed to perform its own side of the agreement. Arising from the foregoing, Counsel submitted that the Appellant proved his case before the Court below, having shown that he did all that the agreement in Exhibit ‘A’ required of him. According to Counsel, the case of the Appellant is anchored on his

claim for the return of his money since the Respondent failed to honour his side of the transaction encapsulated in Exhibit ‘A’, binding on both sides. On the effect of a written agreement between parties, Counsel cited the cases of YADIS (NIG) Ltd vs. G.N.I.C. Ltd (2001) 14 NWLR (Pt. 584) at Pg. 590 Holdings 2 & 3; A. G. RIVERS STATE vs. A.G AKWA – IBOM STATE (2011) 29 W.R.N. 16 R. 4 AT PG. 51 LINES 20 – 40; OGBONNA vs. ATTORNEY GENERAL- IMO STATE (1992) 1 NWLR (PT. 220) 647 @ 685 and OGUNSEINDE vs. S. G. B. LTD. (2005) 21 WRN 114 @ 145; OKOTIE-EBOH vs. MANAGER (2004) 18 NWLR (PT. 905) 142 @ 186-187 and UTIH vs. ONOYIVWE (1991) 1 NWLR (PT. 160) 166 @ 238.

In his contention, Counsel submitted that where parties are ad idem on the terms of a contract, the function of the Court is to give effect to the terms without more as it is the duty of the Court to do so by giving effect to the intention of the parties. Counsel also cited the cases of LARMIE vs. D.P.M.S. LTD. (2006) 3 M.J.S.C. 20 @ 24, R. 3; KOIKI vs. MAGNUSSON (1999) 8 NWLR (PT. 615) 492 @ 514 and UNION BANK OF NIGERIA LTD. vs. BV. UMEH & SONS LTD. (1996) 1 NWLR (PT. 426) 565; KAYDEE VENTURES LTD vs. HON. MINISTER OF FCT (2010) 1-2 MJSC 129 @ 131-132 R. 1.

It was further contended by Counsel that a Court must confine itself within the plain words used in a written agreement and that it is not the business of the Court to make a contract for the parties before it or to re-write the one already made by them, as parties to a written agreement are bound by the terms and conditions contained therein. See the case of UWAH vs. AKPABIO (2014) 2 SCNJ 285 AT 288 R. 3; OJIBAH vs. OJIBAH (1991) 5 NWLR (PT. 919) 296 @ 314 and LARMIE vs. DPMS LTD. (SUPRA); IGBEKE vs. EMORDI (2010) 27 WRN 76 AT 84 R 7; IGNATIUS ANYANWU & ORS vs. ALOYSIUS UZOWUAKA & ORS (2009) 49 WRN 1.

Finally, on this issue, Counsel submitted that the rule is that when a transaction has been reduced to or recorded in writing either by requirement of law or agreement of the parties, the writing becomes in general the exclusive record thereof and no evidence may be given to prove the terms of the transaction except the document itself or secondary evidence of its contents. Counsel referred to the case of C. C. & IND. SPR LTD vs. OGUN STATE WATER CORPORATION (2002) 9 NWLR (PT. 773) 629 @ 654-655 and urged this Court to hold that, arising from the foregoing, the Appellant is entitled to judgment in his favour having proved his case.

ISSUE TWO:
Whether the Judgment of the Lower Court amount to a miscarriage of Justice in that the Appellant is left without a remedy having regard to his right under the Agreement in Exhibit ‘A’ the contents of which the Respondent had not complied with.

In arguing this issue, the contention of Counsel is that the case of the Appellant as per his writ and claim (see page 6 of the Record of Appeal) and his evidence before the Court is simple; that he was required to provide N20,000,000.00 (Twenty Million Naira) only to the Respondent to be used in trading in shares(purchasing and selling) of blue chip companies and that he did just that. According to Counsel, the terms and conditions were spelt out clearly in Exhibit ‘A’ and that he was required to do no more. In addition, Counsel submitted that the whole business was to be concluded in 12 months, while every other action was to be performed by the Respondent. Counsel referred this Court to pages 238 to 240 of the records of appeal.

In his arguments still, Counsel contended that after 9 years, the Respondent took no further action that was undertaken by it under Exhibit ‘A’, thus, forcing the Appellant to seek relief from the Respondent to no avail. Counsel referred this Court to a letter written to the Respondent by the Appellant’s Counsel contained on page 241 to 142 of the records of appeal. Counsel further said that later the Appellant approached the Court and showed that there was nothing required of him that he did not do and that his chagrin, the Court did not give him justice and had his hope dashed. In his further argument, Counsel contended that the maxim; “where there is a right, there is a remedy” – ubi jus, ibi remedium applies to this case. Counsel contended that in this case, he has a right under Exhibit ‘A’, having not breached it in any way.

Learned Counsel further argued that the Judgment of the Court below, if allowed to stand, means that the Appellant is shut out of justice as the evidence clearly shows that the Respondent is not prepared to do anything having collected the

Appellant’s money. Again, Counsel argued that assuming that the Respondent purchased the shares that it claims to have bought, why has it taken forever to sell the same, since that was the object and intention of the parties in the first place? The argument of Counsel is that the only remedy available to the Appellant is in the domain of this Court and he urged this Court to do justice in this matter by resolving this issue in favour of the Appellant against the Respondent.

ISSUE THREE:
Whether the Respondent performed its part of its obligation under Exhibit ‘A’?

In arguing this issue, Counsel contended that from the evidence of the Respondent’s witness before the Court, it is clear that when placed side by side with the evidence of the Appellant, the obligations to be performed by the Respondent were not carried out. Counsel argued that the Respondent claimed to have purchased shares as per the agreement in Exhibit ‘A’ but that this is not supported as a result of a number of reasons, namely;
1. There was no share certificate before the Court
2. There was nothing before the Court showing that

shares were purchased in the joint names of the Appellant and the Respondent (that is the express requirement of Exhibit ‘A’).
3. There is no document showing that shares were bought from the Nigerian Stock Exchange (expressly provided in Exhibit ‘A’).
4. The whole business – purchase and sale of the shares – was to be concluded in 12 months. After 9 years and up till when the Appellant went to Court, no action was taken by the Respondent.
5. The purchasing and selling was expressly to be undertaken by the Respondent. The Appellant was not put in possession of any fund and was never called upon to do anything, that he did not do – see the testimony of the Respondent’s witness before the Court. The Respondent did nothing.

According to learned Counsel, the evidence of the Respondent before the Court seems to point to one inescapable conclusion and that is the fact, that there was really no intention on the part of the Respondent to perform its part of the bargain in Exhibit ‘A’. He said that this is further made worse by the fact Respondent’s witness himself does not know the meaning of the scheme and probably a subterfuge meant or designed to collect the sum of N20,000,000.00 (Twenty Million Naira) only from the Appellant and no more. It was also submitted by Counsel that no shares were bought and that if, any definitely not the shares contemplated by Exhibit ‘A’. Counsel urged this Court to hold that the Respondent failed, neglected, and/or refused to perform its part of the bargain under Exhibit ‘A’ and therefore has no defence to the claims of the Appellant and that the claim of the Appellant should therefore succeed.

In his arguments Counsel referred to the sub-head titled:“other terms and conditions” in Exhibit ‘A’, No. 11 where it was clearly stated thus-
“This facility is granted to enable the customer purchase and trade on shares of Blue Chip Companies from the Nigerian Stock Exchange and under no circumstance shall it be utilized for any other purpose”.

The contention of Counsel here is that there was no evidence before the Court below, adduced by the Respondent to show that it complied with the above contractual condition. Counsel further argued that the Appellant on his part pleaded and led evidence that the terms and conditions stipulated in Exhibit ‘A’ were not complied with by the Respondent and that this piece of evidence was neither discredited nor controverted by the Respondent as there was no evidence to prove the contrary. Counsel cited the case of EYO vs. ONUOHA (2011) 45 NSCQR (PT. 1) 210 AT 214 and contended that unchallenged and un-discredited evidence should be acted upon by the Court as cogent and credible, thus, urged the Court to utilize the decision in AUGUSTINE OBINECHE & ORS vs. HUMPHREY AKUSOBI & ORS (2010) 38 WRN 177 AT 126 R 11. Counsel finally urged this Court to resolve all the three issues formulated herein in favour of the Appellant.

RESPONDENT:
In arguing the sole issue nominated by the Respondent, to wit: “Whether or not from the totality of the lower Court’s review of the facts and laws, the Judgment is sustainable”, learned Respondent’s Counsel contended that the totality of the grounds of appeal of the Appellant, centered of the on the terms of agreement Exhibit ‘A’, dealing with the purchases of shares, tenure of the agreement and the controversy surrounding the shares, not having been bought from the Nigerian Stock Exchange etcetera.

The argument of learned Respondent’s Counsel here is that the Appellant, by the provisions of the law has an onerous duty of establishing through credible evidence, oral and documentary his case. He contended that if the entirety of the facts put forward to justify his case preponderates in the imaginary scale, then he is entitled to judgment and if not, then the case without any hesitation should be dismissed. Centrally, Counsel contended Exhibit ‘A’ is the pivot on which the entire Appellant’s case is predicated upon. Counsel further contended that deducible from Exhibit ‘A’, are the following settled facts:
1. There was offer and acceptance of the tenure was 12 months,
2. The essence of the loan was to purchase and trade in shares of blue chip companies from the Nigerian Stock Exchange,
2. Repayment of the loan at 90% interest rate should be from proceeds of other businesses of the Appellant as well as proceeds generated from the share of trading,
3. Processing and management

fees were agreed upon to be deducted at 0.25% and 5.57%up front.
4. The Appellant was to contribute 20% agents’ participation fund; By this it means the Respondent had only N50 million to credit the Appellant with.
5. That the disbursement of the facility shall be made to Intercontinental Securities.
This Court’s attention was further drawn to other ancillary conditions such as;
i. That the purchase of the shares shall be in the joint names of the Bank and the Appellant,
ii. That interest and charges shall be paid by the Appellant irrespective of the allotment,
iii. That Intercontinental Securities shall collect dividend and browses on the investment,
iv. That the facility shall not be used for any other purpose than for the purposes of buying and trading on shares.

According to learned Counsel, these aforementioned conditions were acceptable to the Appellant and he endorsed unconditional acceptance of the said terms and conditions as depicted in Exhibit ‘A’, the letter of offer. Against the backdrop of the foregoing, learned Respondent’s Counsel made the following arguments. He contended that

in the Appellant’s Relief one at the Court below, the Appellant applied for a declaration that the Respondent as Defendant has failed to comply with the terms and conditions of the transaction as contained in the offer dated 5-2-2008. The argument of learned Counsel is that in sustaining such a declaration, the onus would be on the Appellant to establish with credible facts why he is entitled to the relief.

Counsel further argued that a declaratory relief being equitable in nature is discretion and cannot be granted upon admission by the defendant in its pleading and that this presupposes that by law the Claimant to any declaratory relief must proof its entitlement by convincing the Court to its satisfaction that he or she is entitled to it; that the onus of proof therefore is a heavy one. According to Counsel, the evidence proffered by the Claimant was that the Respondent failed to comply with the terms and condition of the transactions but woefully failed to pin-point the exact failure, which led to the unproved breach.

The contention of Counsel is that pleading plays a vital and fundamental role in litigation; that it is the document that states what a party seeks by way of relief or its challenge and lays bare the facts that parties rely upon in any matter. Counsel argued that the pleading of the Appellant in this case was terse and lacking in any fact upon which the Respondent was being alleged to have failed to abide with the terms of agreement. Counsel therefore submitted that it is not the responsibility of the Court to retire into its chambers to start scampering for evidence or in the least to enter the vivid of the party and start strengthening the use of either of them. Against this position, Counsel contended that there was paucity of evidence to showcase the exact breach being alleged by the Appellant as Claimant. Counsel buttressed his arguments with the cases of OBASI BROTHERS MERCHANT COMPANY LTD vs. MERCHANT BANK OF AFRICA SECURITIES LTD (2005) 4 MJSC 1 at 26; BIEZAN EXCLUSIVE GUEST HOUSE LTD & ORS vs. UNION HOMES SAVINGS & LOANS LTD, (2010) LPELR 3876 CA; AKAOSE & ORS vs. OKOYE & ORS (2016) LPELR 40172 CA; EKUN & ORS vs. BARUWA & ORS (1996) 2 ALL NLR 211; OGUNDARE vs. OKANLAWON & ORS (1963) ALL NLR 358.

In respect of the Appellant’s Relief two, Counsel stated that the Appellant tersely requested for the refund of his N20 million in pretention of the existence of the terms and conditions of the letter of offer, which was accepted. Counsel argued that in the main the Appellant subscribed totally to the conditions over which the agreement in Exhibit ‘A’ was premised and that by so doing, the Appellant became oblivious of the following conditions;
1. That the loan facility shall be repaid in 12 months’ time at 19% interest rate.
2. That if the Appellant does not pay within the period agreed, he shall be liable to pay another 1 % default fee.

The argument of Counsel here is that the Appellant has not been able to impress this Court that he had repaid part of the loan nor the amount that he owed. According to Counsel, payment of part of the loan is proved by cogent evidence such as receipt evidencing, payment or teller or any acknowledgement for that matter. He said that there was no any impression whatsoever for the appellant to rely on his statement of account to establish refund of the N100 million or part of it. Most astonishing, Counsel further argued that even when the

statement of account showing the debt of the Appellant was front-loaded and tendered, he did not deem it fit to challenge the content of his debt and how it escalated to the sum of N177 million plus.

The contention of Counsel was that the pleading of the Appellant was insufficient to sustain the alleged breach in that there was none that he pleaded. It was further contended that unless and until a Plaintiff led evidence to establish his claim and justification to the relief, the Defendant has no duty to defend the issue. See the case of ARIYO & ORS vs. JULIUS BERGER (NIG.) LTD & ANOR (2016) LPELR 41474 CA.

Notwithstanding the above principle, Counsel argued that the Respondent went out of its way to impress on the lower Court that:
a. The account of the Appellant was credited with the N80 million which was not denied throughout the course of the trial.
b. By Exhibit ‘C’, the statement of account of the Appellant, the sum of N100 million was credited on the 5th day of February, 2008.
c. On the 6th day of February, 2008 the sum of N94, 349,250 was debited as the amount of shares bought from the First Inland Bank,
d. The account from that time with the various interests posted was not contested by the Appellant as he was obsessed with only his own N20 million not knowing or having forgot often that the Bank complied with the terms and conditions stated in Exhibit ‘A’ and that it was the Appellant himself that failed to meet with his obligations to the Respondent.

In respect of Appellant’s Relief 3, Counsel argued that for a party to be entitled to claim interest, it must plead the fact that led to the claim. He said that the nature of the interest being claimed must also be proved. Counsel queried whether this interest is post or pre judgment? He said that any attempt to award any interest of whatsoever nature would be unjustifiable.

In respect of Relief 4, Counsel adopted the submission on issue three as his frontal response therefore to the agitation of the Appellant, but conceded that the onus to proof this case rests on the Appellant. Counsel conceded that no law says that the Appellant, upon having invested in any venture, he is precluded from being active or pragmatic on following up the investment, more so when it was from the Appellants account

that the investment of N94 million was deducted. Counsel argued that the Appellant was the one who was not proactive. Counsel further argued that suits are determined on facts and not on the address of Counsel, no matter how dressed in flowery sentences. He said that on record, there was no evidence before the Court below wherein the Appellant stated that he was not required to do anything upon the payment of his own equity contribution of N20 million and also the challenge that the funds were never used to purchase the shares.

In debunking the delusion that no share was bought, Counsel told Court that the Respondent went out of its way to prove that there was purchase of shares as he pleaded facts showing that shares of First Inland Bank were purchased in the sum of N94 million. Again, he said that the Respondent went further to intimate the Appellant of the reference on-line numbers of the account of the shares. According to Counsel, the Appellant did not contradict this fact or that the numbers of shares bought were not correct.

Against the background of the foregoing, Counsel submitted that to urge as the Appellant is contesting that the duties of the Respondent went beyond mere purchases is unfounded, and queried what additional duties were imposed by the agreement on the Respondent and how these were not pleaded.

On the question of what amounts to a “Blue Chip Company”, Counsel argued that at all times to this suit the onus of proving what a blue chip company is, lies with the Appellant and that this onus was not discharged. He said that it is upon the successful proof of what a blue chip company is that the Appellant may be imbued with the power and strength to contend that the shares acquired by the Respondent were not of a blue chip company. Counsel contended further, that there was nowhere in the pleading wherein the issue of the Nigerian Stock Exchange was pleaded or any evidence to support the allegation.

In his arguments, Counsel contended that the duration of the 12 months duration of the transaction was to enable the Appellant retire the loan and not a definite determination period for the entirety of the loan to be exhausted. He said that economically this kind of loan is loan like other loans and are continued notwithstanding the default in paying the loan. According to Counsel, this explained why there was default and why there was a default fee of 1%.

It was also contended by Counsel that parties are bound by the contents of the agreement, which was complied with by the fulfillment of share purchase of First Inland Bank on the part of the Respondent and further submits that this Court is limited to construing the contents of agreements between the parties strictly against the background of the establish facts before the Court below and refrain from extraneous facts which are being imported by the Appellant intended to embark on rewriting the solemn contents of the agreement premised on other facts not agreed upon by the parties. Counsel urged this Court to dismiss this Appeal.

RESOLUTION OF APPEAL
The facts giving rise to this Appeal began in February, 2008 when the Appellant as Customer of the Respondent decided to key into and to participate in one of the raving products of the Respondent then, and which product involved the offering of the Appellant a loan to trade in shares of blue chip Companies. Under the arrangement, which was essentially a “Bankers Acceptance Discounted Facility”, the sum of N100 million

was said to have been given to the Appellant and which required him to make an equity participation of N20 million and which sum the Appellant made available to the Respondent. A letter of Offer was subsequently made and which contained all the terms and conditions of the transaction. This letter of Offer was admitted as Exhibit ‘A’ in the course of trial at the Court below.

Subsequent to these facts, and following the economic downturn of the era, the there was a collapse of the Capital and Securities market and this adversely affected the trade of shares of Companies. The Appellant, asked for the refund of the sum of N20 million contributed on his part as his equity participation vide a letter to that effect and failing on the part of the Respondent, led to the institution of the matter at the Court below. The claims of the Appellant as Claimant were dismissed leading to the institution of this Appeal.

What seems perhaps, not to be in disagreement between the parties, is that fact that there is an Exhibit ‘A’ executed between them and which formed the basis of the binding contract between the parties. Learned Counsel for both

sides of the divide are therefore at idem that the contents of Exhibit ‘A’ should therefore be carefully interpreted and applied to the resolution of the case before this Court. To begin with, the nature of Exhibit ‘A’ as a binding contract between the parties is a “Bankers Acceptance Discounted Facility”. To therefore, adequately locate the contents of Exhibit ‘A’ in the light of the facts of the transaction between them, the need to therefore unravel what the concept of “Bankers Acceptance Discounted Facility” cannot therefore be overemphasized.
The Black’s Law Dictionary, 8th Edition defines the Banker’s Acceptance as…”A bill of exchange drawn and accepted by a Commercial bank; Banker’s acceptance are often issued to finance the sale of goods in international trade.” To rather simplify what the Banker’s acceptance is all about, it may be appropriate to state that simply that it is short-term money market instrument that comes handy in business transactions as it helps to eliminate risks. Basically, it is a time draft that a business or an individual or

customer to a Bank can get from the Bank as an extra cover against counter risk. In a typical transaction as it has occurred in the instant Appeal, the Bank makes an offer of cooperation with certain conditions. For instance, it offers loans at a certain satisfying interest rate. The Customer appreciates the offer as in the instant Appeal and when the Customer decides to meet or fulfill the mentioned conditions, the offer is therefore considered accepted. In the instant Appeal, at the core of a host of other terms and conditions was the payment by the Customer, who is the Appellant herein, of an equity participation of N20 million.

What this actually translates in the simplest way possible, is that the parties, namely, the Appellant on the one hand of the 1st part and the Respondent, that is, Access Bank Plc, agreed as per their Exhibit ‘A’ to purchase or generally trade in the shares of “Blue Chip” Companies. Now, because the financial outlay for the transaction as per their Exhibit ‘A’ was fixed at a N100 million, the parties having agreed to engage in the transaction of trading in shares, one of the parties, that

is, Access Bank Plc under the arrangement decided to provide a backing to the Appellant who could not provide the entire amount of N100 million required to go into the business of trading in shares. What does this mean? The bank undertakes guarantees of the Appellant’s financial ability and potential to the tune of N80 million.

The foregoing, however basically represents the nitty-gritty of most of the financial jargon written in the parties’ Exhibit ‘A’. The persistent claim of the Appellant as Claimant in this matter is that he was kept in the dark by the Respondent as it has to do with the investment status of the duo and that in essence, no such purchases of shares was done by the Respondent on their joint behalf as it ought to have been done and that if at all any such joint investment was done, it was not that of the shares of “Blue Chip” Companies. On the side of the Respondent, however, the following averments at paragraphs 9, 14, 15, 16 and 17 were made in answer to the claims of the Appellant, thus:
“9. That the sum of N94,349,250.00 was expended to buy the First Inland Bank Shares in line with the agreement in the joint names of both the Plaintiff and the Defendant. See paragraphs 1-4 of the “other terms and conditions” in the offer letter.

That the Defendant shall be relying on the Investor Account details in the name of the Plaintiff which is easily accessible to the public and is verifiable. The said detail of the account number is 99417850, Clearing House Number as C5126929 MD and the list of the shares purchased. These documents are hereby pleaded and to be relied upon at the trial.
15. The Plaintiff at all times to this transaction have (sic) all the while had both express and implied knowledge of the agreement.
16. The Defendant hereby pleads all the shares subscribed to in the name of the Plaintiff. As such, there had been full compliance with the terms of the contract with the Plaintiff.
17. That the Defendant credited the sum of N100 million into the said account as undertaken. The shares of equal loan amount less deductions were bought and in the custody of Intercontinental Securities Limited.”

Arising from the foregoing, it is important to note that from a careful perusal of the printed records, the sole Respondent’s witness deposed to the fact that the Appellant’s account was subsequently credited with the sum of N100 million and that shares of First Inland Bank Limited in the sum of N94,349,250.00 was expended to purchase the shares while the sum of N5.7 million was deducted as management fees in accordance with the agreement in Exhibit ‘A’.

Of particular interest is the fact that the Respondent’s witness quoted references of the shares purchased and further stated the Investor Account details as number 99417850, with clearing house number C5126929 MD. He disclosed in his evidence that the Appellant’s account overtime was not serviced in accordance with mutually agreed terms as borne by Exhibit ‘A’. It may, perhaps, be appropriate to state at this stage that this Court is not convinced by the claims of the Appellant that no shares were indeed purchased by the Respondent in the joint names of the parties. It is important to note that the subject of shares, shareholding and generally trading in the shares of companies is not literary speaking, everybody’s yam. The subject is one which

requires competent legal and financial guidance to avoid committing avoidable investment blunders that may engender huge losses. Section 650 (1) of the Companies and Allied Matters Act, defines “Share” as the; “interest in a company’s share capital of a member, who is entitled to share in the capital or income of such a company; and except where a distinction between stock and shares is expressed or implied, includes stock”.
Against the background of forgoing, the exact juridical nature of the share under the Companies and Allied Matters Act, is that shares, when purchased as in the instant Appeal, represents only a basis for the calculation of or distribution of profits, by means of dividends and that the members, must pay for them. In the often quoted definition of FARWELL, J in BORLAND’S TRUSTEES vs. STEEL BROTHERS & CO. LTD (1901) 1 Ch. 279 and by virtue of Section 114 of the Act, the shareholder’s interest consists in the rights and duties given and imposed by the company’s Articles of Association and this does not in any way include the refund of sums expended in buying the shares in question. In the final analysis, this Appeal is moribund and it is accordingly dismissed. The parties are to bear their respective costs.

AHMAD OLAREWAJU BELGORE, J.C.A.: I Agree.

AMINA AUDI WAMBAI, J.C.A.: I have gone through the judgment just delivered by my learned brother Dr. F. O. OHO, JCA.

I am in agreement with his reasoning and conclusion and also dismiss the Appeal.

Appearances:

AHMED A. FINGILLA, Esq. For Appellant(s)

OGBENI BIOLA OYEBANJI, Esq. For Respondent(s)