UNITED BANK FOR AFRICA v. CORPORATE AFFAIRS COMMISSION & ORS
(2016)LCN/8452(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of March, 2016
CA/L/443/2013
RATIO
APPEAL: WHAT IS THE DUTY OF A RESPONDENT IN AN APPEAL
It is beyond doubt that the traditional role of a Respondent in an appeal is to defend the judgment of a lower Court. However, if a Respondent intends to depart from this role by attacking the said judgment in anyway, he is obligated to file either a Cross-appeal or a Respondent’s Notice. In F. NWADIALO, Civil Procedure in Nigeria, 2nd Edition, Lagos; University of Lagos Press, 2000, 846, the learned Author stated:
“A respondent served with a notice of appeal by an appellant may himself appeal against the same decision. Such an appeal by a respondent is referred to as cross-appeal. Also, if he does not appeal, he may desire to contend on the appeal that the decision of the Court below be varied, either in any event, or in the event of the appeal being allowed in whole or in part. If he so desires, then he must give notice to that effect specifying the grounds of that contention and the precise form of the order proposed to be made.
Apart from filing a cross-appeal or a notice for variation of the judgment, where any of these can properly be done, a respondent may also contend on the appeal that the decision of the Court below should be affirmed on grounds other than those relied upon by the Court. In that case he must file a notice to that effect specifying the grounds of that contention.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
APPEAL: DIFFERENCE BETWEEN A CROSS-APPEAL AND A RESPONDENTS NOTICE TO AFFIRM
Now, Order 9 Rule 2 of the Court of Appeal Rules, 2011 states:
“A respondent who desires to contend on the appeal that the decision of the Court below should be affirmed on grounds, rather than those relied upon by that Court must give notice to that effect specifying the grounds of that contention.”
It is apparent from the above provision that the essence of a Respondent’s Notice to ‘affirm on other grounds’ is such that a Respondent desires to contend that even if the Appellant’s ground succeeds, still the judgment on appeal ought not to be set aside, there being other grounds not relied upon by the lower Court but which can sustain the judgment. In other words, the Respondent’s notice postulates the correctness of the judgment, notwithstanding the grounds of the appeal by the Appellant to have it set aside. It is to be noted that if a Respondent wants the grounds relied on by the lower Court to be set aside, he should cross-appeal. The effect of this form of Respondent’s Notice is to vary the decision in the judgment appealed against on other grounds found in favour of the Respondent in the judgment and ipso facto, it can only be invoked in support of a ground found but not relied upon in the judgment being appealed against. A Respondent cannot therefore rely on a ground not accepted in the lower Court thereby urging this Court to set aside such ground and still find in its favour. In BOB-MANUEL v. BRIGGS [2003] 5 NWLR (Pt. 813) 323; (2003) LPELR-787(SC) pp. 13-14, paras. C-C, per UWAIFO, JSC held:
“This provision or a similar one has been considered in many decisions of this Court. In Summonu v. Ashirota (1975) 7 NMLR 16 at 23, this Court, held that when a complete reversal of a decision of a lower Court is sought by a respondent, it should by cross-appeal and not respondent’s notice. The law therefore, has been clearly laid down that any respondent who seeks to set aside a decision of a lower court on any crucial aspect must do so by way of a cross-appeal. See Eliochin (Nig.) Ltd.v. Mbadiwe Co. Ltd. (1986) 1 NWLR (Pt. 14) 47; Anyaduba v. Nigerian Renowned Trading Co. Ltd. (1990) NWLR (Pt. 127) 397. It is said that the traditional role of a respondent’s notice is to seek to affirm the Judgment appealed against on other grounds than may have been given in the Judgment: See Lagos City Council v. Ajayi (1970) 1 All NLR 297 at 294. The essential position of a respondent who files a respondent’s notice is that the Judgment is correct but that there are other grounds which could either be in substitution for some of the reasons given for it or in addition to the grounds for the judgment. That can be seen in the observation of Olatawura, JSC at p, 31 of American Cyanamid case thus:
“In my view invocation of Order 3 Rule 14(2) postulates that the Judgment is correct but the reasons for the Judgment are based on wrong premise when there is enough evidence on record which can sustain the judgment of other grounds other (sic) than those relied upon by the trial Court. The respondent’s notice postulates the correctness of the Judgment notwithstanding the grounds of appeal by the appellant to set it aside.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
APPEAL: CONSEQUENCE OF A RESPONDENT WHO FAILS TO FILE A CROSS-APPEAL OR A RESPONDENTS NOTICE AND DESIRES TO CHALLENGE THE DECISION OF THE LOWER COURT
It is settled law that a Respondent’s who neither files a cross-appeal nor a respondent’s notice but desires to challenge the decision of the lower Court, will not be allowed to file a Brief of Argument attacking the judgment appealed against or be allowed to present oral argument in the course of hearing of the appeal.
See: OBI v. INEC [2007] 11 NWLR (Pt. 1046) 560; EZE v. OBIEFUNA [1995] 6 NWLR (Pt. 404) 639. PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
BANKING LAW: DUTY OF CONFIDENTIALITY WHICH A BANK OWES HIS CUSTOMER AND ITS EXCEPTIONS
It is beyond doubt that a banker owes his customer a legal duty of confidentiality not to disclose information to third parties, and any breach of this duty could give rise to liability in damages if loss results. This duty arises between a banker and customer upon the opening of an account and continues beyond the time when the account is closed. It covers all transactions concerning the account and information obtained by virtue of the relationship between the banker and its customer. The duty is, however, qualified by a few exceptions which were laid by BANKES, L.J. TOURNIER v. NATIONAL PROVINCIAL AND UNION BANK OF ENGLAND (1924) 1 KB 461 at 472, where the Learned Jurist stated:
“In my opinion it is necessary in a case like the present to direct the jury what are the limits, and what are the qualifications of the contractual duty of secrecy implied in the relation of banker and customer. There appears to be no authority on the point. On principle I think that the qualifications can be classified under four heads: (a) Where disclosure is under compulsion by law; (b) where there is a duty to the public to disclose; (c) where there interests of the bank require disclosure; (d) where the disclosure is made by the express or implied consent of the customer. An instance of the first class is the duty to obey an order under the Bankers’ Books Evidence Act. Many instances of the second class might be given. They may be summed up in the language of Lord Finlay in Weld-Blundell v. Stephens (1), where he speaks of case where a higher duty than the private duty is involved, as where “danger to the State or pubic duty may supersede the duty of the agent to his principal.” A simple instance of the third class is where a bank issues a writ claiming payment of an overdraft stating on the face of the writ the amount of the overdraft. The familiar instance of the last class is where the customer authorizes a reference to his banker.”
See also Christofi v. Barclays Bank Plc [2000] 1 WLR 937. The above exceptions seem to have been incorporated into Article 7 of the Code of Conduct of the Code of Banking Practice ostensibly referred to by the Appellant Counsel. For purpose of clarity, Article 7 states:
“7.1 Banks will observe a strict duty of confidentiality about their customers (and former customers) affairs and will not disclose details of customers’ accounts or their names and addresses to any third party, including other companies in the same group, other than in the four exceptional cases permitted by the law, namely:
7.1.1 Where a bank is legally compelled to do so;
7.1.2 Where there is a duty to the public to disclose;
7.1.3 Where the interests of the bank require disclosure: and
7.1.4 Where disclosure is made at the request or with the consent, (expressed or implied) of the customer.
7.2 Banks will not use exception 7.1.3 above to justify the disclosure for marketing purposes of details of customers’ accounts or their names and addresses to any third party, including other companies within the same group.
7.3 All banks should insist on their staff signing a “Declaration of Secrecy” to guarantee the confidentially of customer information.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
UNITED BANK FOR AFRICA – Appellant(s)
AND
1. CORPORATE AFFAIRS COMMISSION
2. WEMA BANK PLC
3. CITIBANK NIGERIA LIMITED
4. FIRST CITY MONUMENT BANK PLC
5. STERLING BANK PLC
6. ZENITH BANK PLC – Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court, Lagos Division, coram IDRIS J. delivered on the 18th day of March, 2013.
?The brief facts of this case according to the Appellant are largely undisputed. The Plaintiff/1st Respondent sometime on 6th July, 2011 caused a uniform letter to be written to the 1st Defendant/Appellant and the 2nd to 6th Respondents wherein it stated its plan to carry out a special inspection exercise of all loan transactions and documentations between the Appellant and the 2nd to 6th Respondents, on the one hand and public and private companies in Nigeria purportedly pursuant to Sections 1,315(2) and 317(2) of the Companies and Allied Matters Act. The Appellant, just like the 2nd to 6th Respondents, upon receipt of the letter, wrote to the Plaintiff/1st Respondent informing it that the Sections of the Act relied upon by the 1st Respondent does not give it the powers it purports to exercise and consequently, the Appellant would not oblige the 1st Respondent the request sought. Dissatisfied with the response, the 1st
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Respondent caused an Originating Summons to be filed against the Appellant and the 2nd to 6th Respondent upon which judgment was delivered by the trial Court.
Aggrieved with the decision of the lower Court, the Appellant filed a Notice of Appeal dated 18th April, 2013 on two grounds.
Parties filed and exchanged their respective briefs. Appellant’s brief settled by KOP Odidika, Dorcas Oghome Ndukwe, Ijeoma Ekeh, Oluwapelumi Faloye of Sower & Messuarius Solicitors is dated 1st August, 2013 but deemed 7th May, 2014. Two issues were nominated therein.
Chief, the Hon. U. N. Udechukwu, KSC, SAN; Kehinde Aina, Esq.; O. O. Adeleye, Esq.; O. V. Iweze, Esq.; O. Folarin (Miss); Faith Ume (Miss) of Aina Blankson LP filed a Brief on behalf of the 1st Respondent. It is dated and filed 3rd March, 2015 but deemed 13th May, 2015. 1st Respondent adopted the issues formulated by the Appellant in its brief. 2nd Respondent filed a brief of argument dated and filed 24th February, 2015. It is settled by Prof. Osopitan, (SAN), Damilola Salisu (Miss) of Bayo Osopitan & Co. Two issues were also identified therein.
?
Meanwhile, the 5th Respondent’s Amended
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Brief settled by Abiodun Olaleru of George Ikoli & Okagbue Law Firm. It is dated 14th April, 2015 and filed 22nd April, 2015 but deemed 13th May, 2015. The 5th Respondent merely incorporated its argument on its Notice to Affirm the judgment of the lower Court on other grounds dated 6th August, 2013 but deemed 25th February, 2015 and nominated two issues for its determination.
Before dwelling on the main appeal, it is important to note that the 1st Respondent has via Form 11, filed a Notice by Respondent of Intention rely upon preliminary objection dated 4th March, 2015 pursuant to Order 10 of the Court of Appeal Rules, 2011 on the following grounds:
(a) That the 5th Respondent’s filed a “Notice of Intention to contend that the Judgment should be affirmed on grounds other than those relied on by the Court Below” which in effect seeks to Appeal against the Judgment of the Court below.
(b) That the 5th Respondent’s Brief of Argument dated 9th September 2013, in which the 5th Respondent, in effect, attacked the Judgment of the Court below instead of supporting it.
(c) That as judicial precedents stand, a Respondent can only support the
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Judgment of the Court below and, not discredit it.
(d) That where a Respondent intends to attack the Judgment of the Court below, then it must file an appeal or cross-appeal.”
The preliminary objection shall be considered forthwith.
Arguing the Preliminary Objection, 1st Respondent’s counsel submitted that the 5th Respondent’s Notice is grossly misconceived and incompetent based on the fact that the 5th Respondent’s grouse constitutes a challenge of the judgment of the Court below on the basis that the judgment is wrong. Counsel submitted where a Respondent intends to contend the decision of Court as being erroneous, the appropriate option is by filing an Appeal or a Cross-Appeal and not a Notice that the judgment be affirmed. He referred to WILLIAMS v. DAILY TIMES [1990] 1 NWLR (Pt. 124) 1; ADEKEJE v. AKIN-OLUGBADE [1984] 3 NWLR (Pt. 60) 214 at 226 to submit that for this Court to affirm the judgment of the lower Court as sought by the 5th Respondent it will in essence change the entire gamut of the decision of the lower Court.
Counsel contended that the submissions of the 5th Respondent are substantially insupportable. He submitted that
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the Agency of Banks in the particular con of this case does not arise from Section 199(1) of CAMA but by virtue of Section 317(1) read together with Section 317(4). He contended that the issue of Agency based on the Supreme Court’s decision in OSIGWE v. PSLS MGT. CONSORTIUM LTD [2009] 3 NWLR (Pt. 1128) 378 was raised by the 5th Respondent at the Court below but it was decided against the 5th Respondent. Counsel submitted that this case does not call for the application of the principle of Agency discussed by the Supreme Court in the case of OSIGWE. He argued that unlike the OSIGWE case, this is not a breach of contract case involving a contract made by an Agent (Bank) on behalf of a principal (Company), this is a case seeking to scrutinize registerable charges executed between the bank and companies to confirm compliance with Section 197 of CAMA, by both the banks as Banks/Companies and the borrower companies, both being parties to the instrument creating the charge. Learned Counsel submitted on the strength of A.G. LAGOS STATE v. A.G. FED. & ORS [2003] 6 SCNJ 1, that the Court would lack the jurisdiction to enforce compliance with the provision of
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Section 317 (1)(a)-(c) of CAMA against the 5th Respondent unless the 5th Respondent is joined in the suit. He contended that an Agent can be joined in a suit where there is a statutory responsibility placed on that Agent. Counsel urged that the Preliminary Objection be sustained and that 5th Respondent’s Notice and Brief of argument be struck out for being incompetent.
In response, 5th Respondent’s counsel submitted that Relief 2 as contained in the 1st Respondent’s Notice of Preliminary Objection has been overtaken by event as the filing of the instant 5th Respondent’s Amended Brief of Argument automatically makes the 5th Respondent’s erstwhile Brief of Argument dated 9th September, 2013 obsolete.
With respect to Relief 1, Counsel contended that the position taken by the 1st Respondent is incorrect. He submitted that a perusal of the 5th Respondent’s Notice is proper in line with the provisions of Order 9 Rule 2 of the Court of Appeal Rules, 2011. He relied on OBI v. INEC (2007) 11 NWLR (Pt. 1046) 565 at 673 to 674; OGUMA v. IBWA [1988] 1 NWLR (Pt. 73) 658 at 661; KOTOYE v. CBN [1989] 1 NWLR (Pt. 98) 419 at 427 to submit that the preliminary
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objection be dismissed.
My Lords, I believe the question to be determined here is whether the 5th Respondent’s Notice is incompetent in the circumstance of this appeal. It is beyond doubt that the traditional role of a Respondent in an appeal is to defend the judgment of a lower Court. However, if a Respondent intends to depart from this role by attacking the said judgment in anyway, he is obligated to file either a Cross-appeal or a Respondent’s Notice. In F. NWADIALO, Civil Procedure in Nigeria, 2nd Edition, Lagos; University of Lagos Press, 2000, 846, the learned Author stated:
“A respondent served with a notice of appeal by an appellant may himself appeal against the same decision. Such an appeal by a respondent is referred to as cross-appeal. Also, if he does not appeal, he may desire to contend on the appeal that the decision of the Court below be varied, either in any event, or in the event of the appeal being allowed in whole or in part. If he so desires, then he must give notice to that effect specifying the grounds of that contention and the precise form of the order proposed to be made.
Apart from filing a cross-appeal or a notice for
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variation of the judgment, where any of these can properly be done, a respondent may also contend on the appeal that the decision of the Court below should be affirmed on grounds other than those relied upon by the Court. In that case he must file a notice to that effect specifying the grounds of that contention.”
Now, Order 9 Rule 2 of the Court of Appeal Rules, 2011 states:
“A respondent who desires to contend on the appeal that the decision of the Court below should be affirmed on grounds, rather than those relied upon by that Court must give notice to that effect specifying the grounds of that contention.”
It is apparent from the above provision that the essence of a Respondent’s Notice to ‘affirm on other grounds’ is such that a Respondent desires to contend that even if the Appellant’s ground succeeds, still the judgment on appeal ought not to be set aside, there being other grounds not relied upon by the lower Court but which can sustain the judgment. In other words, the Respondent’s notice postulates the correctness of the judgment, notwithstanding the grounds of the appeal by the Appellant to have it set aside. It is to be noted that if
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a Respondent wants the grounds relied on by the lower Court to be set aside, he should cross-appeal. The effect of this form of Respondent’s Notice is to vary the decision in the judgment appealed against on other grounds found in favour of the Respondent in the judgment and ipso facto, it can only be invoked in support of a ground found but not relied upon in the judgment being appealed against. A Respondent cannot therefore rely on a ground not accepted in the lower Court thereby urging this Court to set aside such ground and still find in its favour. In BOB-MANUEL v. BRIGGS [2003] 5 NWLR (Pt. 813) 323; (2003) LPELR-787(SC) pp. 13-14, paras. C-C, per UWAIFO, JSC held:
“This provision or a similar one has been considered in many decisions of this Court. In Summonu v. Ashirota (1975) 7 NMLR 16 at 23, this Court, held that when a complete reversal of a decision of a lower Court is sought by a respondent, it should by cross-appeal and not respondent’s notice. The law therefore, has been clearly laid down that any respondent who seeks to set aside a decision of a lower court on any crucial aspect must do so by way of a cross-appeal. See Eliochin (Nig.) Ltd.
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v. Mbadiwe Co. Ltd. (1986) 1 NWLR (Pt. 14) 47; Anyaduba v. Nigerian Renowned Trading Co. Ltd. (1990) NWLR (Pt. 127) 397. It is said that the traditional role of a respondent’s notice is to seek to affirm the Judgment appealed against on other grounds than may have been given in the Judgment: See Lagos City Council v. Ajayi (1970) 1 All NLR 297 at 294. The essential position of a respondent who files a respondent’s notice is that the Judgment is correct but that there are other grounds which could either be in substitution for some of the reasons given for it or in addition to the grounds for the judgment. That can be seen in the observation of Olatawura, JSC at p, 31 of American Cyanamid case thus:
“In my view invocation of Order 3 Rule 14(2) postulates that the Judgment is correct but the reasons for the Judgment are based on wrong premise when there is enough evidence on record which can sustain the judgment of other grounds other (sic) than those relied upon by the trial Court. The respondent’s notice postulates the correctness of the Judgment notwithstanding the grounds of appeal by the appellant to set it aside.”
I have carefully considered and
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perused the ground upon which the 5th Respondent’s Notice is based coupled with the issues and argument of counsel contained in the Brief of Argument and same reveals that the 5th Respondent, not wanting to appeal against the entire judgment of the trial Court, nonetheless desires to contend herein that the decision of the lower Court should be affirmed on ground as enumerated in the Notice. However, a perfunctory perusal of the variation sought by the 5th Respondent shows that the 5th Respondent is ipso facto asking this Court to set aside the decision of the lower Court on similar grounds upon which the instant appeal was brought by the Appellant. I am fortified in this regard by the order sought by the 5th Respondent which states:
“An order affirming the Judgment of Honourable Justice M. B. Idris delivered on 18th March, 2013 also on the ground that based on the principles of the law of agency, the 5th Respondent being an agent of a disclosed, principal (that is 5th Respondent’s various custom.ers who have created charges on their properties) cannot be compelled to give information about its disclosed principal to the Appellant pursuant to an
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investigation under Section 315(2) of the Companies and Allied Matters Act or regarded as having a secondary obligation to disclose such information.”
It is obvious from the above that the 5th Respondent is not satisfied with that part of the decision of the lower Court and I believe the option available to it will be to have filed an appeal against the decision and not to file a Respondent’s Notice on similar grounds upon which the main appeal by the Appellant is predicated. A fortiori, the grounds and issues raised by the 5th Respondent in the Notice are predominantly the same as the Appellant raised in the main appeal before this Court. I believe it is not the case of the 5th Respondent that there are other grounds which could either be in substitution for some of the reasons given for the judgment by the lower Court or in addition to the grounds for the judgment. Here the 5th Respondent is taking up the role of an Appellant which he will not be allowed to do.
To this extent, the preliminary objection of the 1st Respondent succeeds. The 5th Respondent’s Notice to vary the decision of the lower Court is hereby dismissed.
Having regard to the
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foregoing, I must quickly make some comments particularly as it relates to the Brief of Argument filed by the 2nd Respondent. I have earlier enumerated the law regarding the fact that the role of a Respondent in an appeal is to defend the judgment that is being challenged by an Appellant. While in an appeal as a Respondent, it is not open to a party to challenge the judgment of the lower Court; if he so desires to so do, he must of necessity file a cross-appeal. A Respondent cannot blow hot and cold at the same time.
A scrutiny of the two issues and argument in support thereof by the learned counsel for the 2nd Respondent shows that the 2nd Respondent is ipso facto dissatisfied with the decision of the lower Court. 2nd Respondent apparently urged this Court to allow the appeal, not minding the fact that it is a Respondent in this appeal. It is settled law that a Respondent’s who neither files a cross-appeal nor a respondent’s notice but desires to challenge the decision of the lower Court, will not be allowed to file a Brief of Argument attacking the judgment appealed against or be allowed to present oral argument in the course of hearing of the appeal.
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See: OBI v. INEC [2007] 11 NWLR (Pt. 1046) 560; EZE v. OBIEFUNA [1995] 6 NWLR (Pt. 404) 639. Therefore, it is deemed that the 2nd Respondent has not filed any brief as the brief of argument filed is incompetent and hereby struck out.
In the light of the foregoing, the substantive appeal by the Appellant will resolved based solely on the Briefs of argument filed by the Appellant and the 1st Respondent.
The Appellants formulated two issues for determination. Same shall be adopted for the resolution of this appeal. It states:
1. Whether Section 199 of the Companies & Allied matters Act, or any other section of the Act, places an obligation on the 1st Defendant/Appellant to ensure that charges created under Section 197 of the Companies and Allied matters Act are registered.
2. Whether a combined reading of Sections 7, 197, 198, 199 and 315 of the Companies and Allied Matters Act can be construed as eroding the duty of confidentiality imposed on the Appellant by the Banker/Customer relationship.
On the issue 1, the Learned Counsel submitted that the learned trial Judge was wrong in the conclusion he came to, he contended that the
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issue of whether Section 199 of the Act imposes an obligation, primary or secondary, on the Appellant to register Charges created under Section 197 of the Act was not one of the questions submitted by the Plaintiff/1st Respondent for determination in its Amended Originating Summons at the trial Court. He citedLAMATU SHAHSI & ANOR v. MADAM SHADIA SMITH & 2 ORS [2009] 18 NWLR (Pt. 1173) Pg. 330 at 344; CHIEF APPOLOS N. AMADI v. FELIX CHINDA & 6 ORS [2009] 10 NWLR (Pt. 1148) Pg. 107 at 124; EKPEYONG v. NYONG (1975) 2 SC 71; OGIDA v. OLIHA [1986] 1 NWLR (Pt. 19] pg. 786 at 798; ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR v. RAYMOND EKWENEM (2009) 19 NWLR (Pt. 1158) pg. 410 at 431 Para. C to submit that a Court must confine itself to the issues submitted to it for determination, and that the learned trial Judge erred in law by adjudicating on issues not submitted for determination.
Learned Counsel further submitted that the learned trial Judge’s interpretation of Section 199(1) of the Companies and Allied matters Act is erroneous. Counsel contended that Section 199(1) of the Act is unequivocal and does not lend itself to
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multiplicity of meaning he cited IRABOR OVIAWE V. INTEGRATED RUBBER PRODUCTS NIGERIA LIMITED & ANOR (1994) 3 NWLR (Pt. 492) pg. 126 at 139 Para E-F; VICTOR ADEGOKE ADEWUNMI & ANOR v. ATTORNEY GENERAL OF EKITI STATE & 6 ORS (2002) 2 NWLR (Pt. 751) Pg. 474 at 512 para. E-F to submit that, where the words of statutes are clear and unambiguous, they should be given their plain grammatical meaning.
Learned counsel further contended that Section 199(1) of CAMA clearly places the duty to register a Charge on the Company creating the charge and not the Appellant or any other Bank to register a Charge as a ‘person interested’. He argued that Section 199(1) places registration at the discretion of a party interested and not an obligation, and that the obligation is on the borrowing company. He submitted that the reasoning of the learned trial judge is not in tandem with the provision of the Statute and urged this Court to set aside the decision of the trial Court.
Responding on issue 1, learned Counsel for the 1st Respondent submitted that the issue of whether Section 199 of the CAMA or any other section of CAMA places an obligation on any bank,
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including the Appellant, to ensure that Charges created under Section 197 of CAMA are registered, is not one of the questions which the Court below was called upon to answer by the 1st Respondent. He contended that there was no relief sought in that regard and the Court below gave no such relief. He submitted that everything said by the Court below as to whether the Banks have primary or secondary obligation to register charges and instruments is nothing but side comments and at best obiter dicta, and that no one appeals against an obiter dictum. He referred to ABACHA v. FAWEHINMI [2000] 6 NWLR (Pt. 660) 228 at 297 E-F; AFRO-CONTINENTAL NIGERIA LIMITED v. AYANTUYI & ORS [1995] 9 NWLR (Pt. 420) 411.
Counsel contended that the principle that a Court must not grant a party a Claim not made by that party cannot apply in this case because the Court below did not make any Order or grant any claim to the 1st Respondent based on Section 199 of CAMA except in so far as that Section gives the 1st Respondent the function and duty to receive for registration particulars of every charge created by any company and of all issues of debentures of a nature requiring
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registration under Section 197 of the CAMA. He cited AKIBU v. ODUNTAN [2000] 13 NWLR (Pt. 685) 446 at 462 para F; NWOSU v. A.S.E.S.A. [1992] 2 NWLR (Pt. l35) 689 at 717 para E, to submit that a Judge may make certain comments which are merely indicative of the thought process from which he arrived at his final decision, and that if the final decision is correct, the judgment cannot be disturbed on Appeal merely because, in arriving at the correct decision the judge arrived at some faulty premise.
It is the further contention of counsel for the 1st Respondent that it is the obligation of the Appellant and the other defendants sued at the lower Court are companies incorporated under CAMA though they carry on business as Banks and that their obligation to see that registrable instruments are registered arise primarily under Section 199(1) & (2) of CAMA as companies being party to the registrable charges, and then under Section 199(2) & (3) as persons interested in the registrable charges or debenture. He urged this Court to resolve issue 1 against the Appellant.
Section 199 of CAMA states:
1. It shall be the duty of a company to send to the
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Commission for registration, the particulars of every charge created by the company and of the issues of debentures of a series requiring registration under Section 197 of this Act, but registration of any such charge may be effected on the application of any person interested therein.
2, Where registration is effected on the application of some person other than the company, that person shall be entitled to recover from the company the amount of any fees properly paid by him to the Commission on the registration.
3. If any company makes default in sending to the Commission for registration, the particulars of any charge created by the company or of the issues of debentures of a series requiring registration as aforesaid, then, unless the registration has been effected on the application of some other person, the company and every officer of the company who is in default shall be guilty of an offence and liable to a fine of N500.
The above provision of the Act is clear and ought not to generate any controversy or diverse interpretation. The Act clearly makes it a mandatory duty of a company creating a charge to register same with the 1st
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Respondent Commission. With the use of the word “shall”, there is an ascription of a mandatory obligation on any such company creating a charge pursuant to Section 197 of the Act to ensure that same is registered. The section however ascribed a discretionary or directive duty on such other persons who may be interested in the charges so created to ensure registration with the Appellant. This, I believe is the plain, simple and unambiguous intention of the draftsman.
It had been said, as a matter of fact and law that the primary duty of a judge is to expound and not to expand the law. In any case, the fundamental duty of the Court is to bring to the fore, the intention of the legislature as expressed in a statute and nothing more. In AMAECHI v. INEC [2008] 5 NWLR (Pt. 1080) 227 SC; (2008) LPELR-446(SC), MOHAMMED, JSC stated:
“It is certainly not the duty of a Judge to interpret a statute to avoid its consequence. The consequences of a statute are those of the legislature not the Judge. A Judge who regiments himself to the consequences of a statute is moving outside the domain of statutory interpretation. He has by that conduct engaged himself in
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morality which may be against the tenor of the statute and therefore not within his judicial power.”
Similarly, GALADIMA, JSC reiterated in AROMOLARAN v. AGORO (2014) LPELR-24087(SC) p. 25, paras. B-F, thus:
“I must say that the duty of the Court is to interprete the words contained in the statute and not to go outside the clear words in searching of an interpretation which is convenient to the Court or to the parties in the process of interpretation. The Court will not embark on a voyage of discovery. Where a statute is clear and unambiguous, as this case, this Court will follow the literal rule of interpretation where the provision of the statute is clear and no more. In the case of ADEWUNMI v. A.G. EKITI STATE (2002) 2 NWLR (Pt. 751) 474, WALI, JSC said at page 512: “In cases of statutory construction the Court’s authority is limited. Where the statutory language and legislature intent are clear and plain, the judicial inquiry terminates there.”
It is instructive to note that while the conclusions by the learned trial judge that the 5th Respondent is a person interested in the charges created by companies that are his customers remain
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unassailable; the learned trial judge, however, with respect, erred when he held that the Act places a mandatory obligation, albeit secondary, on the 5th Respondent to comply with the provision of Section 197(1) of the Act. This is not a correct interpretation of that section. As Section 197(1) has stated that “registration of any such charge MAY be effected on the application of any person interested therein”, the Court’s authority in this regard is to interprete strictly the clear provision of the section which gives the 5th Respondent a discretion on matters provided thereunder. A fortiori, the intention of the legislature is made more manifest under Subsection 3 of Section 199 which prescribes the consequences of non-compliance with the mandatory registration of the charges by a company. It is clear therefrom that only the company and/or its officers are liable to the punishment prescribed therein. No mention was made with respect to other “persons interested”.
To this extent, I am of the firm view that the learned trial judge erred when he held that the Appellant is under mandatory obligation to register charges pursuant to Section 197 of the Act.
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This issue is resolved in the Appellant’s favour.
On issue 2, learned Counsel for the Appellant submitted that a person cannot be required to disclose information or to produce documents in respect of which he owes a duty of confidence by virtue of carrying on a banking business unless the person required to do is a company under investigation or any related company to which the investigation is related. He further submitted that a bank owes an implied duty to its customers not to divulge information about its customers to third parties, and that such disclosures can only be done on the authorization of the account holder and under certain specific circumstances. He referred to JACKSON v. ROYAL BANK OF SCOTLAND (2005) UKHL 3; TOURNIER v. NATIONAL PROVINCIAL AND UNION BANK OF ENGLAND [1924] 1 KB 461; TURNER v. ROYAL BANK OF SCOTLAND PLC (1999) 2 All ER (Comm) 664 and Article 7 of the Code of Conduct of the Code of Banking Practice produced by the General Assembly of Bank Chief Executives under the auspices of The Chartered Institute of Bankers on Nigeria.
Learned counsel submitted that there is nothing in the sections under consideration that
23
remotely suggests the conclusion that the learned trial Judge came to. He further cited VICTOR ADEGOKE ADEWUNMI & ANOR v. ATTORNEY GENERAL OF EKITI STATE & 6 ORS (supra) and urged this Court to set aside the judgment of the trial Court.
Responding, counsel for the 1st Respondent submitted that the learned trial Judge ably and correctly stated the law. He argued by that by Section 7(1) of CAMA , the 1st Respondent has the statutory duty to undertake such other activities as are necessary or expedient for giving effect to the provisions of the Act. It is the further submission of Counsel that flowing from the provisions of Sections 7 , 197 , 198, 199 and 315 of the CAMA, the 1st Respondent is conferred with powers to enforce compliance with the provisions of CAMA by all companies registered under or pursuant to CAMA, and that where it becomes necessary and expedient for the 1st Respondent to investigate the affairs or operations of companies, including the Appellant, and the 2nd-6th Respondents, with regard to ascertaining compliance with statutory requirements for the registration of all registrable charges and instruments, for the purpose of giving
24
effect to the provisions of the Act, such investigation cannot be faulted.
Counsel further contended that from a combined reading of Section 197 , 198 , and 199 of CAMA , all particulars of charges including instruments by which such charge were created, if any, are required by law to be submitted to the 1st Respondent for registration, and that at such, the particulars of charges and instruments creating them are clearly regarded by statute as within the public domain and clearly outside the private contractual treaties between the parties for which the duty of confidentiality can be invoked. Counsel submitted that in view of Section 317(1) and (4) of the CAMA, no bank may lawfully, on the ground of Banker/Customer confidentiality or otherwise, withhold such information/particulars, when requested by the 1st Respondent in the course of investigating compliance with Section 197 and 199 of the CAMA. He referred the Court to WEMA BANK PLC v. OSILARU [2008] 10 NWLR (Pt. 1094) Pg. 150 at 182 and submitted that the Code of Conduct of the Code of Banking Practice produced by the General Assembly of Bank Chief Executives under the auspices of
The Chartered
25
Institute of Bankers on Nigeria relied upon by the Appellant was neither relied upon at the Court below nor tendered in evidence as an exhibit.
Learned counsel referred to TOURNIER v. NATIONAL PROVINCIAL AND UNION BANK OF ENGLAND [1924] 1 KB 46. He submitted that Section 197 overrides the duty of confidentiality and operates to compel companies and Banks to disclose the details of the transactions to the 1st Respondent for registration for public notice.
Counsel contended that the lending Banks being also companies subject to the supervision of the 1st Respondent under Section 7 of CAMA owe a fiduciary duty to the public to prevent fraud and illegality by acting under Section 199(1) of the Act to apply to the Commission to register such charges and debit the account of the borrower company under Section 199(2) of the Act accordingly. Counsel further contends that Section 7 (c) of the CAMA empowers the 1st Respondent to arrange or conduct an investigation into the affairs of any company where interests of shareholders and public so demands. He referred to NORWEST HOLST LIMITED v. SECRETARY OF STATE FOR TRADE (1978) Ch.D 201 and submitted that a
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combined reading of Sections 7,197, 198, and 315 of the Act intend that the particulars of all such transactions between the Companies and their Bankers are covered by the disclosure philosophy and exempted from the principles of confidentiality. Counsel relied on SOBAMOWO v. ELEMUREN [2008] 11 NWLR (Pt. 1097) 12 at 27 D-F to submit that common law cannot override the express provision of a statute.
Learned Counsel contended that it is the duty of the Court to give effect to the laws made by the Legislature, and that the Legislature has the power to make law which extinguish vested rights such as confidentiality obligation between a Bank and a Company. He referred to OLAGBEGI v. A.G. ONDO STATE (1984) 5 NSCR 147 at 158 Para 9; OBAWUYANA v. BENDEL STATE (1932) 2 SC 147. Counsel submitted on the whole that Banks, including the Appellant cannot lawfully, on the ground of Banker/Customer confidentiality or otherwise withhold such information/particulars, when requested by the 1st Respondent, in the course of an investigation of the affairs of any Company under Section 315(2) of CAMA, by an Inspector appointed by the 1st Respondent. He urged the Court to
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dismiss this Appeal.
At pages 418 of the record of appeal, the learned trial judge had held thus:
“No Bank including and of the Defendants may lawfully on the ground of Banker/Customer confidentiality or otherwise, withhold such information/particulars, when requested by the Plaintiff, in the course of an investigation of the affairs of any company under Section 315(1) of the Companies and Allied Matters Act, by an Inspector appointed by the Plaintiff.
Even if it is conceded that the relationship between a Banker and customer is one regulated by contract and that the cardinal obligation owed a customer by his banker is the duty of confidentiality, the confidentiality requirement must be subordinated to public policy enacted by an Act of Parliament.See 317 (1)(a) and (4) of CAMA.”
My lords, I am of the film view that the above conclusion of the learned trial judge impregnable and inviolable and it ought not be disturbed by this ourt. I shall give my reasons forthwith.
It is beyond doubt that a banker owes his customer a legal duty of confidentiality not to disclose information to third parties, and any breach of this duty could give
28
rise to liability in damages if loss results. This duty arises between a banker and customer upon the opening of an account and continues beyond the time when the account is closed. It covers all transactions concerning the account and information obtained by virtue of the relationship between the banker and its customer. The duty is, however, qualified by a few exceptions which were laid by BANKES, L.J. TOURNIER v. NATIONAL PROVINCIAL AND UNION BANK OF ENGLAND (1924) 1 KB 461 at 472, where the Learned Jurist stated:
“In my opinion it is necessary in a case like the present to direct the jury what are the limits, and what are the qualifications of the contractual duty of secrecy implied in the relation of banker and customer. There appears to be no authority on the point. On principle I think that the qualifications can be classified under four heads: (a) Where disclosure is under compulsion by law; (b) where there is a duty to the public to disclose; (c) where there interests of the bank require disclosure; (d) where the disclosure is made by the express or implied consent of the customer. An instance of the first class is the duty to obey an order under
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the Bankers’ Books Evidence Act. Many instances of the second class might be given. They may be summed up in the language of Lord Finlay in Weld-Blundell v. Stephens (1), where he speaks of case where a higher duty than the private duty is involved, as where “danger to the State or pubic duty may supersede the duty of the agent to his principal.” A simple instance of the third class is where a bank issues a writ claiming payment of an overdraft stating on the face of the writ the amount of the overdraft. The familiar instance of the last class is where the customer authorizes a reference to his banker.”
See also Christofi v. Barclays Bank Plc [2000] 1 WLR 937. The above exceptions seem to have been incorporated into Article 7 of the Code of Conduct of the Code of Banking Practice ostensibly referred to by the Appellant Counsel. For purpose of clarity, Article 7 states:
“7.1 Banks will observe a strict duty of confidentiality about their customers (and former customers) affairs and will not disclose details of customers’ accounts or their names and addresses to any third party, including other companies in the same group, other than in the four
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exceptional cases permitted by the law, namely:
7.1.1 Where a bank is legally compelled to do so;
7.1.2 Where there is a duty to the public to disclose;
7.1.3 Where the interests of the bank require disclosure: and
7.1.4 Where disclosure is made at the request or with the consent, (expressed or implied) of the customer.
7.2 Banks will not use exception 7.1.3 above to justify the disclosure for marketing purposes of details of customers’ accounts or their names and addresses to any third party, including other companies within the same group.
7.3 All banks should insist on their staff signing a “Declaration of Secrecy” to guarantee the confidentially of customer information.”
Therefore, I am inclined to agree with the learned counsel for the 1st Respondent that in view of Section 317(1) and (a) of CAMA, no bank including the Appellant may lawfully, or the ground of Banker/Customer confidentiality or otherwise, withhold such information/particulars, when requested by the 1st Respondent, in the course of investigating compliance with Section 197 and 199 of CAMA. No doubt, the duty of any entity createdpursuant to the provision
31
of a Statute, to comply with the provisions of the law overrides any confidentiality duty entity may owe to his client or customer.
Section 317 of CAMA states:
(1) When an inspector is appointed under Section 314 or 315 of this Act, it shall be the duty of all officers and agents of the company, and of all officers and agents of any other body corporate whose affairs are investigated under Section 316 of this Act –
(a) to produce to the inspector all books and documents of or relating to the company or, as the case may be, the other body corporate which are in their custody or power;
(b) to attend before the inspector when required to do so; and
(c) otherwise to give the inspector all assistance in connection with the investigation which he is reasonably able to give.
(2) If the inspector considers that a person other than an officer or agent of the company or other body corporate is or may be in possession of information concerning its affairs, he may require that person to produce to him any books or documents in his custody or pourer relating to the company or other body corporate, to attend before him and otherwise to give
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him all assistance in connection with the investigation which he is reasonably able to give; and it is that person’s duty to comply with the requirement.
(3) An inspector may examine on oath the officers and agents of the company or other body corporate, and any such person as is mentioned in Subsection (2) of this section in relation to the affairs of the company or other body and administer an oath accordingly.
(4) In this section, a reference to officers or to agents includes past, as well as present, officers or agents (as the case may be); and “agents” in relation to a company or other body corporate, includes its bankers and solicitors and persons employed, by it as auditors, whether these persons are or are not officers of the company or other body corporate.
(5) An answer given by a person to a question put to him in exercise of powers conferred by this section (whether as it has effect in relation to an investigation under any of Sections 314 to 316 of this Ac t as applied by any other section in this Act) may be used in evidence against him.”
?From the foregoing, it must be noted that inspector must have been appointed pursuant to
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Section 314 and 315 with respect to a pending investigation of a company before the provision of Section 317 can apply. Where no inspector is appointed, the provision does not come into play.
Apparently, the 1st Respondent Commission by virtue of Section 315(2) thereof may appoint an inspector to carry out investigations into a suspected contravention of the Law. The inspector can require any person to attend before him to deliver up documents and answer questions. Banks may be required by the Commission to produce documentation or information on customers to enable the 1st Respondent Commission to perform its functions under the CAMA. Confidential client information may be disclosed under Section 317 as well as the exercise of the Commission’s general power to require provision of information and documents in discharging its functions pursuant to Section 7 of CAMA. Section 317(1) makes it clear that it is the MANDATORY DUTY of officers and agents of the company to produce to the inspector such document requested that may be requested and the definition of ‘agents’ under Subsection (4) encompasses bankers, that is the Appellant inclusive. As the learned
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counsel for the 1st Respondent rightly noted, the provisions of the Act qualified, or at best override the confidentiality nature of whatever relationship that exists between the Appellant and its customers and in essence operates to compel the Appellant to disclose whatever information necessary pursuant to Section 317(1) of the Act. The Appellant cannot therefore hide behind the confidentiality veil to attempt to frustrate a legitimate exercise of the statutory power granted to an agency or person under the law. I need not say more.
This issue is resolved in favour of the 1st Respondent and against the Appellant.
On the whole, this appeal succeeds only on issue one. The judgment of the trial Court, per IDRIS, J delivered on the 18th March, 2013 is hereby partly set aside. No order as to costs.
SIDI DAUDA BAGE, J.C.A.: I am privileged to have read in advance the judgment just delivered by my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA, and I totally agree with the reasoning and the conclusion arrived thereat, and have nothing extra to add.
?
On the whole, I abide by the consequential orders made in
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the leading judgment and order as to costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have been privileged to have a preview of the leading judgment just delivered by my learned brother, A. O. OBASEKI-ADEJUMO, JCA.
The issues in contention have been adequately are exhaustively addressed and I agree with the reasoning and conclusion contained therein to the effect that the appeal be allowed in part.
I also hold that this appeal succeeds in part and I abide by the consequential orders made in the leading judgment.
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Appearances:
Oyeniyi SodimuFor Appellant(s)
O. O. Adeleye with him, O. B. Iweze ? 1st Respondent
Prof. T. Osipitan, (SAN) with him, Damilola Salisu ? 2nd Respondent
Fred Onuobia ? 3rd Respondent
J. Omisade with him, Wonuola Ogunmola ? 4th Respondent
A. Olaleru with him, L. Obitayo ? 5th Respondent
Evelyn Obioha (Mrs.) with, E. Ubeze ? 6th RespondentFor Respondent(s)
Appearances
Oyeniyi SodimuFor Appellant
AND
O. O. Adeleye with him, O. B. Iweze – 1st Respondent
Prof. T. Osipitan, (SAN) with him, Damilola Salisu – 2nd Respondent
Fred Onuobia – 3rd Respondent
J. Omisade with him, Wonuola Ogunmola – 4th Respondent
A. Olaleru with him, L. Obitayo – 5th Respondent
Evelyn Obioha (Mrs.) with, E. Ubeze – 6th RespondentFor Respondent
