WEMA BANK v. FERTILE GIDEON VENTURES AND CO. LTD
(2020)LCN/15923(CA)
In the Court of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, June 05, 2020
CA/IB/256/2014
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Nonyerem Okoronkwo Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
WEMA BANK PLC APPELANT(S)
And
FERTILE GIDEON VENTURES AND CO. LTD RESPONDENT(S)
NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment): The genesis of this appeal sprang from Suit No. AB/57/2006, whereby Respondent herein Fertile Gideon Ventures & Co. Ltd at High Court of Justice Ogun State sued the appellant Wema Bank Plc., for:
(1) Declaration that the terms and conditions contained in the defendant’s offer letter dated 28/4/2005 in respect of the loan and overdraft to the plaintiff is tainted with fraud on the ground of deliberate inflated charges and commissions against the Central Bank of Nigeria Banker’s Tariff and Monetary Policy Guidelines and are therefore illegal and unenforceable.
(2) Declaration that as at end of February 2006 and in accordance with the statement of account issued by the defendant to the plaintiff the defendant illegally and excessively charged plaintiff’s account by N66,456.31.
(3) Declaration that the charges and commissions contained in the defendant’s letter of offer dated “April 28th 2005” are not covered by CBN Bankers’ Tariff and Guidelines and therefore illegal, void, unenforceable and should be set aside.
(4) Declaration that the defendant is not entitled to continue to charge the plaintiff the inflated charges, commissions, interest, while the matter is pending in Court and that the statement of account is not a true account of the plaintiff’s banking transactions with the bank on the ground that the bank i.e. the defendant did not properly keep the plaintiff’s account in line with the Central Bank’s of Nigeria Monetary Policy Guidelines and Banker’s Tariffs.
(5) N500,000.00 (Five hundred thousand Naira) being general damages suffered by the claimant as the result of defendant’s breach of contract negligence and illegal charges.
(6) A mandatory Order compelling the defendant to refund a sum of N52,500.00 (Fifty two thousand, five hundred naira) unlawfully charged or debited into the claimant’s account without the consent or approval of the claimant.
The appellant herein as defendant in their statement of defence and counter-claim counterclaimed as follows:
(i) The payment of a sum of N1,582,126.26 (One million, five hundred and eighty-two thousand, one hundred and twenty-six kobo) as at 30th September 2009; being outstanding balance of the credit/overdraft facilities granted to the Claimant vide the Defendant’s letter of 28th April 2006 and duly accepted by the Claimant, of which repayment was secured by the pledge/deposit by the Claimant with the Defendant of the Claimant’s title documents in respect of its Flash Drier and Share Certificates and which facilities the Claimant has failed and/or neglected to full repay.
(ii) Interest on the said sum of N1,582,126.26 (One million, five hundred and eighty-two thousand, one hundred and twenty-six kobo) at the rate of 24% per annum (as agreed) from 1st October, 2009 until payment.
(iii) A Declaration that the Defendant is entitled to sell the Claimant’s pledged Flash Drier in lieu of payment of the outstanding sum as may be adjudged by this Honourable Court.
(iv) An Order of injunction restraining the Claimant, its servants or agents from tempering with, sell, lease or otherwise dispose of the said Flash Drier.
(v) An Order for the delivery of the said Flash Drier to the Defendant/Counter-claim or its nominee subsequent to the order of this Honourable Court as may be made in paragraphs (i) – (iv) above.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Background of Parties case
Having considered the briefs of the parties and of course the record I would for purposes of this appeal adopt the background facts and account as given by the appellant. It runs thus:
INTRODUCTION
The subject of this Appeal is the ruling delivered by the Ogun State High Court of Justice, Abeokuta Judicial Division on 23rd July, 2013 (Coram Hon. Justice Olarenwaju Mabekoje) in Suit No. AB/57/2006.
The Appellant herein was the Defendant/Counter-Claimant at the trial Court while the Respondent was the Claimant at the Court below. At the conclusion of trial, the Court below Per the Honourable Justice N.I. Saula (Rtd) substantially dismissed the case of the Respondent/Defendant to Counter-claim while on the Appellant’s Counter-Claim, the trial Court found in favour of the Appellant and held that the Respondent was indebted to it in an amount yet to be computed as outstanding balance on the facilities granted to the Respondent. His Lordship proceeded to direct the Appellant to re-compute the Respondent’s Statement of account in line with the findings of that Court. The judgment of the Court below is at pages 143 – 185 of the Record of Appeal. His Lordship subsequently retired from service and the case file was re-assigned to His Lordship, the Hon. Justice O. Mabekoje of that same Court.
On 23rd July 2013 the matter came up before the Honourable Justice O. Mabekoje for hearing on the recomputed account wherein he declined to give effect to the directive contained in the judgment of the Honourable Justice N.I. Saula (Rtd.) by pronouncing on the re-computed Statement of Account of the Respondent on the ground that the trial Court had become funtus officio and that the statement of account recomputed was not one of the exhibits tendered at trial to subject same to the rigours of cross-examination. The ruling of the Court below is at pages 218 – 225 of the Record of Appeal. Being dissatisfied with the ruling, the Appellant herein filed an Appeal against the said ruling to this Honourable Court vide a Notice of Appeal dated the 22nd day of August, 2013. The Notice of Appeal is at pages 226 – 231 of the Record of Appeal.
At the Lower Court, the Respondent herein as Claimant commenced an action against the Appellant as Defendant vide a Writ of Summons and other front-loaded processes filed on the 17th March, 2006.
The Respondent filed its Further Amended Statement of Claim and other frontloaded processes dated 30th December, 2010 and claimed against the Appellant as follows:-
1. Declaration that the terms and conditions contained in the Defendant’s offer letter dated 28/4/2005 in respect of the loan and overdraft granted to the plaintiff are tainted with fraud on the ground of deliberate inflated charges and commissions against the Central Bank of Nigeria Banker’s Tariff and Monetary Policy Guidelines and are therefore illegal and unenforceable.
2. Declaration that as at the end of February 2006 and in accordance with the Statement of Account issued by the Defendant to the Plaintiff, the defendant illegally and excessively charged Plaintiff’s account by N66,456.31.
3. Declaration that the charges and commissions contained in the Defendant’s letter of offer dated April 28th 2005 are not covered by CBN Bankers’ Tariff and Guidelines and therefore illegal, void, unenforceable and should be set aside.
4. Declaration that the Defendant is not entitled to continue to charge the Plaintiff the inflated charges, commissions, interest, while the matter is pending in Court and that the Statement of Account is not a true account of the Plaintiff’s banking transactions with the bank on the ground that the bank i.e. the Defendant did not properly keep the Plaintiff’s account in line with the Central Bank’s of Nigeria Monetary policy Guidelines and Banker’s Tariffs.
5. N500,000.00 (Five hundred thousand naira) being general damages suffered by the Claimant as the result of Defendant’s breach of contract negligence and illegal charges.
6. A mandatory Order compelling the Defendant to refund a sum of N52,500.00 (Fifty-two thousand, five hundred naira) unlawfully charged or debited into the Claimant’s account without the consent or approval of the Claimant.
The Amended Statement of claim and other frontloaded processes are at pages 3 – 23 of the Record of Appeal.
The Appellant also filed a consequential Amended Statement of Defence, Statement on oath of additional witness and Counter-Claim and other frontloaded processes dated 16th October, 2009 wherein it counter-claimed as follow:
(i) The payment of a sum of N1,582,126.26 (One million, five hundred and eighty-two thousand, one hundred and twenty-six kobo) as at 30th September 2009; being outstanding balance of the credit/overdraft facilities granted to the Claimant vide the Defendant’s letter of 28th April 2006 and duly accepted by the Claimant, of which repayment was secured by the pledge/deposit by the Claimant with the Defendant of the Claimant’s title documents in respect of its Flash Drier and Share Certificates and which facilities the Claimant has failed and/or neglected to full repay.
(ii) Interest on the said sum of N1,582,126.26 (One million, five hundred and eighty-two thousand, one hundred and twenty-six kobo) at the rate of 24% per annum (as agreed) from 1st October, 2009 until payment.
(iii) A Declaration that the Defendant is entitled to sell the Claimant’s pledged Flash Drier in lieu of payment of the outstanding sum as may be adjudged by this Honourable Court.
(iv) An Order of injunction restraining the Claimant, its servants or agents from tempering with, sell, lease or otherwise dispose of the said Flash Drier.
(v) An Order for the delivery of the said Flash Drier to the Defendant/Counter-claim or its nominee subsequent to the order of this Honourable Court as may be made in paragraphs (i) – (iv) above.
The Appellant consequential Amended Statement of Defence, Counter Claim and Statement of oath of the additional witness and other frontloaded processes are at pages 24 – 33 of the Record of Appeal.
There was no reply by the Respondent sequel to the filing the Appellant’s Consequential Amended of Statement of Defence and Counter Claim. Thus pleadings closed and issues were joined by the parties.
Upon the closure of pleadings and after observance of pre-trial conference in line with the then extant rules of the Court, trial commenced in the matter on 7th February, 2011 and parties adopted their respective Statements on Oath and tendered Exhibits.
The Respondent called 2 witnesses namely; Mr. Emmanuel Adaramaja and Mr. Tayo Falode. The 1st Respondent’s witness adopted his deposition on oath dated 28th October, 2010 as his Evidence-in-Chief. He was not cross-examined. The 2nd claimant’s Witness likewise adopted his deposition on oath dated 5th August, 2009 as his Evidence-in-Chief and was cross-examined by the Appellant’s Counsel (see pages 57 – 75 of the Record of Appeal)
The Appellant (as Defendant) opened its case on the 19th May, 2010 and called its sole witness in the person of Mrs. Bolaji Oyekan, an officer of the Appellant who equally adopted her deposition on oath dated 5th August, 2009 as her Evidence-in-Chief and was cross-examined by the Respondent’s Counsel. (See pages 76 – 82 of the Record of Appeal).
A total of 25 Exhibits were tendered; 21 by the Respondent, 5 by the Appellant. Exhibits tendered during trial and admitted were marked variously as follows:
1. Exhibit A – Certified true copy of guidelines for beneficiaries which was Exhibit 1 in the previous proceedings.
2. Exhibit B – Certified true copy of the Central Bank of Nigeria Monetary, credit foreign exchange and trade policy guideline for fiscal 2004/2005 (Monetary Policy Circular No. 37) Exhibit 2 in previous proceeding.
3. Exhibit C1 – Statement relating to current Account marked Exhibit 3a-b in previous proceedings.
4. Exhibit D – Statement relating to Loan Account marked Exhibit 4 in previous proceeding.
5. Exhibit E – Offer letter dated April 28, 2005 marked Exhibit 5 in previous proceeding.
6. Exhibit F – Report on Gross-checking of Banking Transaction of Acct. No.0901071678617 and 090871678611 with Wema Bank Plc. Panseke Branch marked Exhibit 6 in previous proceeding.
7. Exhibit G – Certified True Copy of CBN Guide to Bank charges marked Exhibit 7 in previous proceeding.
8. Exhibit H – Certified True Copy of records of proceedings in the former proceedings.
9. Exhibit J – Original certificate of incorporation of the Respondent.
10. Exhibit K – A copy of Application for LPO
11. Exhibit L – Valuation Certificate on Asset (Plaint and Machinery) of the Respondent’s company.
12. Exhibit M – Photocopy of letter dated 10th February, 2006
13. Exhibit N – Photocopy of Notice of Demand of loan repayment dated 2nd March, 2006.
14. Exhibit O – Photocopy of letter dated 10th October, 2005 addressed to President Olusegun Obasanjo GCFR.
15. Exhibit P – photocopy of letter dated 6th February, 2006 addressed to the Ogun Regional Manager of the Appellant.
16. Exhibit Q – photocopy of letter dated 28th September, 2007 addressed to the Chairman of the Respondent.
17. Exhibit Q1 – Photocopy of letter dated 4th October, 2007 to the Chairman of the Appellant.
18. Exhibit Q2 – Photocopy of letter dated 25th October, 2007 addressed to the Chairman of the Appellant.
19. Exhibit Q3 – Photocopy of letter dated 28th November, 2007 addressed to the Respondent’s Solicitor.
20. Exhibit Q4 – photocopy of letter dated 24th March, 2008 addressed to the Appellant by the Respondent’s Solicitors.
21. Exhibit R – Photocopy of letter dated 30th March, 2005 addressed to the Appellant by the Respondent.
22. Exhibit S – Letter dated 28th April, 2005; i.e. Appellant’s offer letter.
23. Exhibit S1 – Memorandum of Acceptance dated 6th May, 2005.
24. Exhibit T – Statement of Account of the Claimant No. 090871678611 of 9/10/2009.
25. Exhibit T1 – Statement of Account of Claimant No. 0901071678617 of 9/10/2009.
See pages 156 – 166 of Record of Appeal.
At the conclusion of the trial, and in accordance with the relevant Civil Procedure Rules, Parties filed their respective Final Written Addresses. The Appellant filed its Written Address dated 10th June, 2011; while the Respondent filed its Address dated 12th July, 2011. The Appellant filed a Reply Address dated 10th October, 2011.
The respective Addresses of parties and the Appellant’s Reply Address are at pages 83 – 132 of the Record of Appeal.
On the 21st December, 2011, judgment was delivered by the Trial Court wherein the lower Court held that the claims of the Respondent failed while the Counter-Claim of the Appellant succeeded and were thus granted in the following terms:
i. The Claimant is indebted to the Defendant in an amount yet to be computed as outstanding balance on the facility granted to the Claimant.
ii. The Defendant is entitled to interest on the balance to be determined by the Court but not 24% per annum.
iii. The Defendant is not entitled to sell the Claimant’s flash drier until it has failed to pay the amount found to be outstanding.
iv. The Claimant shall not deal in any way detrimental to the Defendant’s lien on the flash drier pending the settlement of the outstanding balance.
v. The Parties shall maintain the status quo with respect to the flash drier.
In line with the judgment of the Trial Court, the appellant filed a recomputed Statement of Account of the Respondent based on its findings. On the 28th day of February, 2013, the Honourable Justice O. Mabekoje who took over the case on the retirement of the Honourable Justice N.I. Saula; ordered Parties to address him on the report of findings and recomputed account of the Respondent and in particular whether he can after judgment in the suit proceed to consider the document filed by the Appellant and give final judgment or make further Order on the report. In compliance with the Order, the Appellant filed an Address dated 13th March, 2013 while the Address of the Respondent is dated 26th March, 2013 (see pages 185 – 212 of the Record of Appeal).
On 23rd July, 2013 the lower Court delivered a ruling in which the Court declined to pronounce on the recomputed amount outstanding on the Respondent’s account thus disallowing the Appellant’s application. The instant Appeal is challenging the said ruling of the lower Court refusing to pronounce on the recomputed account of the Respondent and giving effect to the judgment of 21st December, 2011.
The ruling of 23rd July, 2013 is at pages 218 – 225 of the Record of Appeal.
Although, this is what purports to be an earlier judgment delivered on 21st December, 2011 by Justice N.I. Saula. This appeal relates to the ruling 23rd July 2018 of Justice O. Mabekoje who took over the case.
In the ruling, the later judge declined further jurisdiction over the matter particularly in respect of re-computing the alleged indebtedness of the Respondent when the former trial judge had finished with the case and had become functus officio.
Issues for Determination
The appellant’s issue for determination;
Whether the judgment of the Court below per the Honourable Justice N.I. Saula, which did not conclusively and definitely pronounce on the rights and obligations of the parties therein but deferred same upon the re-computation of the charges on the loan account of the Respondent can be said to be final and thereby rendered the lower Court functus officio. (Distilled from Grounds 1 & 3)
Whether the Court below was right as it did, in raising suo motu and placing reliance on the issue that the re-computed Statement of Account was not one of the Exhibits tendered at the trial Court and that no evidence has been given on it to subject same to the rigours of cross-examination, without affording parties the opportunity to be heard before arriving at his conclusion which has occasioned miscarriage of justice against the Appellant. (Distilled from Ground 2)
Whether the procedure adopted by the Appellant herein in compliance with the directives contained in the judgment of the lower Court of 21st December, 2011 per the Honourable Justice N.I. Saula was right and therefore ought to have been given effect by the Honourable Justice O. Olarewaju when the matter came before him for hearing on the re-computed Account of the Respondent. (Distilled from Ground 4)
Whether, the ruling of the Learned Judge in refusing to give effect to the judgment of the trial Court of 21st December, 2011 is not against the weight of evidence and an advancement of technicality which had occasioned a denial of justice having regard to the principle of ubi jus ibi remedium, and therefore ought to be set aside. (Distilled from Grounds 5 and 6).
In my view, the main issue is contained in issue No. 1 and which is whether there was a judgment of Justice N.I. Saula (Rtd) which can be the basis of an appeal or which can be improved by the application and ruling of Justice O. Mabekoje. There was no such judgment as the judgment of Saula J of 21 December 2011 did not decide the main issue but left it for further investigation or re-computation. A judgment must be definite and decide the issue or issues submitted. It must not be futuristic.
A judgment of a Court in a civil case, appellate or otherwise must show a clear resolution of all the issues that arise for decision in the case in accordance with the correct principle and end up with an ultimate verdict which flow from the facts as found Ezeoke & sons Ors vs. Nwagbo, Anor 1988 3 SC 51.
At Page 222 of the record, Saula J was recorded by Mabekoje J to have recorded thus:-
Trial was conducted before my learned brother Saula, J. who after listening to the evidence of the witnesses and submissions of counsel delivered judgment in the case on 21st of December, 2011 in the following terms:-
“Now to the Claims:
Claimants-
Claim 1
The claim fails.
Claim 2
The calculation is yet to be done in accordance with the finding of the Court.
Claim 3
There is no illegality in the transaction to render same void and unenforceable. Whatever had been found excessive are to be recomputed since the claimant is yet to pay same.
Claim 4
The Defendant is to recomputed and prepares the Claimant’s statement of account as per the findings of the Court.
Claim 5
No breach of contract had been proved by the Claimant to entitle it to damages.
Claim 6
The Defendant shall credit the Claimant’s account with the sum of N52,500 debited therein without his consent and which is not covered by the terms and conditions of the contract.
Defendant’s Counter Claim
Claim 1
The claimant is indebted to the Defendant in an amount yet to be computed as outstanding balance on the facilities granted to the Claimant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Claim 2
The Defendant is entitled to interest on the balance to be determined by the Court but not 24% per annum.
Claim 3
The Defendant is not entitled to sell the Claimant’s flash drier until it has failed to repay the amount found to be outstanding.
Claim 4
The Claimant shall not deal in any way detrimental to the Defendant’s lien on the flash drier pending the settlement of the outstanding balance.
Claim 5
The parties shall maintain the status quo with request to the flash drier.”
After reading the judgment, the Court ordered as follows:-
“The Defendant is to re-compute the outstanding indebtedness of the Claimant in line with Court’s finding and file same before the Court.”
Commenting on this in his ruling, Mabekoje in his ruling said at page 223 of the record thus:-
A judgment of a Court of law is expected to bring to finality the dispute between the parties. Once a judge has pronounced his judgment, he becomes functus officio and any reason given subsequently is of no effect. See: Okoruwa & Anor. vs. State (1975) 5 SC Reprint 23. In the instant case, it is glaring that the judgment delivered in this matter in 2011 is not conclusive. The claims/issues were not definitively resolved. Learned counsel for the Defendant/Counter-Claimant conceded to this fact in his address. It is evident that the Court directed that a re-computation of the account of the Claimant should be done because it found that the indebtedness of the Claimant was not up to the amount claimed by the Defendant in its counter-claim and it was impossible for the Court to determine the exact indebtedness from the totality of the evidence before the Court. Without sitting as an appellate Court over the judgment of my learned brother. Which I know that I have no such power, I think the Court should have considered whether in the situation stated above it can be said that the Defendant has proved its counter claim. If the answer is in the negative, an appropriate order should have been made instead of directing the Defendant to re-compute the indebtedness of the claimant. I do not think that any final order or decision can now be made in the matter since the Court is already functus officio.
I see much sense in the reasoning of O. Mabekoje and do endorse it as a correct exposition for the above reason, what purports to be judgment of Saula J of 21 December 2011 is set aside. The appeal against Mabekoje J ruling of 23rd July 2013 is dismissed. The case in its entirety shall be remitted to the Chief Judge of Ogun State for reassignment to another judge for a new trial.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my Lord NONYEREM OKORONKWO, JCA just delivered and I agree with my Lord’s reasoning and conclusion.
I am also of the view that the case be remitted to the Chief Judge of Ogun State for reassignment to another Judge for hearing de novo.
FOLASADE AYODEJI OJO, J.C.A.: I have had the opportunity to read in draft, the judgment delivered by my learned brother, Nonyerem Okoronkwo, JCA. I completely agree with him that this appeal lacks merit.
The law is trite that he who hears must be the one to decide and/or determine the rights or obligations dependent on facts presented at the hearing. In other words, the judex who heard must be the one to take a decision on the facts placed before him. See NYESOM VS. PETERSIDE & ORS (2016) 7 NWLR (PT. 1512) 452; AGBEOTU VS. BRISBE & ORS (2005) 10 NWLR 9PT. 932) 1. In OLATIOTE VS. OYELARAN (2019) 4 NWLR (PT. 1662) 352 @ 379, PARAS. D-G, the Supreme Court per Eko, JSC held as follows:
“This jurisprudence, or principle of fair hearing, is not entirely resident outside this jurisdiction. A number of local decisions of our Courts pointedly endorse the postulation that a Judge who did not conduct either the entire or part trial cannot write and/or express a judgment predicated on the evidence he did not hear; as can be seen from Egba N. A. v. Gbadamosi (1937) 13 NL R 119; Runka v. Katsina N.A. (1950) 13 W.A.C.A 98; Raji v. Bauchi N.A. (1957) N.R.N.L.R. 31, Ngwuta, JCA (as he then was) cited with approval these authorities in Bassey Edibi v. The State (2009) L.P.E.L.R.- 8702 (C.A) in re-stating the principle. In the Bassey Edibi case (supra) Ilok, J of the Cross River High Court sitting at Obubra delivered judgment in a murder case that he did not hear evidence on, or in which the evidence was taken by another Judge, Obasse, J, of the same Court. Holding that the judgment was a nullity, the Court of Appeal, unanimously, set aside the conviction and sentence passed on the appellant. Ubwa v. Tiv Traditional Council (2004) 11 N.W.L.R. (Pt. 884) 427 also bears eloquent testimony to this principle: that a decision by a judex who did not participate in the hearing proceedings is a nullity. This Court nullified the entire judgment when it appeared from the concurring judgment of Mangaji, JCA of the Jos Division of the Court of Appeal that he participated in the decision and it was obvious that he did not participate in the hearing of the appeal. The consequence for this lapse in hearing resulting in a decision has always been that the decision is null and void.”
In this case, the lower Court had in an earlier Judgment delivered by Saula, J. found amongst others that though the Respondent is indebted to the Appellant, the total sum of indebtedness could not be determined from evidence placed before it. The Appellant computed the outstanding sum remaining unpaid from the loan/credit facility extended by Appellant to the Respondent and caused an application to be made before another Judge who did not participate in the initial proceedings to grant the sum remaining outstanding and unpaid by the Respondent.
The Judge before whom the application was brought did not participate in the original proceedings. The learned trial Judge was therefore right when he held that he has no power to pronounce on the exact indebtedness.
It is for the above and the more in-depth reasoning in the lead Judgment that I also dismiss this appeal and order that the entire case be remitted back to the Chief Judge of Ogun State for re-assignment to another Judge for hearing de novo.
Appearances:
J.K. Aworinde For Appellant(s)
Adegbenro Ogunbade For Respondent(s)