ECOBANK (NIG) LTD v. ANCHORAGE LEISURES LTD & ORS (2020)

ECOBANK (NIG) LTD v. ANCHORAGE LEISURES LTD & ORS

(2020)LCN/14865(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, December 14, 2020

CA/LAG/CV/975/2019

RATIO

APPEAL: EFFECT OF AN ISSUES FRAMED FOR DETERMINATION IN AN APPEAL

Let me start by saying that the issues framed for determination in an appeal should be such that are so crucial that if decided in favour of a party, such a party will be entitled to judgment. See UGO vs. OBIEKWE (1989) 1 NWLR (PT 89) 566 at 580, OKOYE vs. NCFC (1991) 6 NWLR (PT 199) 501, KALU vs. ODILI (1992) LPELR (1652) 1 at 21-22 and MANCHA vs. EMUKOWATE (2017) LPELR (43113) 1 at 9-12. PER ANTHONY OGAKWU, J.C.A.

APPEAL: POWER OF THE APPELLATE COURT TO EVALUATE DOCUMENTARY EVIDENCE

I would equally be so guided in the resolution of this appeal since it is settled law that an appellate Court is in as good a stead as the trial Court in the evaluation of documentary evidence: UNION BEVERAGES LTD vs. PEPSICOLA INT’L LTD (1994) LPELR (3397) 1 at 11-12, GONZEE (NIG) LTD vs. NERDC (2005) LPELR (1332) 1 at 16, IWUOHA vs. NIPOST (2003) 4 SC (PT II) 37 and REV. KING vs. THE STATE (2016) LPELR (40046) 1 at 49. PER ANTHONY OGAKWU, J.C.A.

JURISDICTION: WHAT DETERMINES THE JURISDICTION OF A COURT

As earlier stated, when the issue of jurisdiction to entertain a Suit comes into play, the law insists that recourse must be had to the statement of claim and reliefs sought by the Plaintiff. See PDP VS SYLVA Supra and A.G KWARA STATE V OLAWALE Supra. PER ANTHONY OGAKWU, J.C.A.

STARE DECISIS: BINDINGNESS OF THE DECISION OF THE SUPREME COURT

The Respondents have rightly submitted that the decision of this Court is binding on it. That is rudimentary law vide YOUNG vs. BRISTOL AEROPLANE CO. LTD (1944) 2 ALL ER 293 at 300, USMAN vs. UMARU (1992) LPELR (3432) 1 at 21, OKEKE vs. THE STATE (1995) 4 NWLR (PT 352) 672 and APARI vs. HOSE (1999) LPELR (6650) 1 at 8. It is equally abecedarian law that the decision of the apex Court is binding on this Court; PER ANTHONY OGAKWU, J.C.A.

LOCUS STANDI: MEANING AND NATURE OF LOCUS STANDI

Now, locus standi of a plaintiff/claimant to institute an action is inextricably linked to the exercise of jurisdiction by a Court. Where the party initiating an action lacks locus standi, the Court would be robbed of jurisdiction: NWORIKA vs. ONONEZE-MADU (2019) 7 NWLR (PT 1672) 422 at 444-445 and GOV. IMO STATE vs. AMUZIE (2019) 10 NWLR (PT 1680) 331 at 352. In B. B. APUGO & SONS LTD vs. ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD (2016) LPELR (40598) 1 at 23, Kerere-Ekun, JSC stated:

“Locus standi is the legal right of a party to an action, to be heard in litigation before a Court or Tribunal. The term connotes the legal capacity of instituting or commencing an action in a competent Court of law or Tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever. It is also the law that to have locus standi to sue, the Plaintiff must have sufficient interest in the suit. For instance, one of the factors for determining sufficient interest is whether the party seeking redress will suffer some injury or hardship from the litigation.”
Furthermore, in CENTRE FOR OIL POLLUTION WATCH vs. NNPC (2019) 5 NWLR (PT 1660) 518 at 561-562, the apex Court while explaining the concept of locus standi stated that a person aggrieved must be a man who suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something. The person aggrieved must be a man who has been refused something which he had a right to demand. Therefore, in simple terms, the narrow and rigid conception of locus standi means that it is only a person who has suffered a specific legal injury by reason of actual or threatened violation of his legal right or legally-protected interest who can bring an action for judicial redress. In effect, the rule with regard to locus standi postulates a right-duty pattern which is commonly found in private law litigation. Subsequent English decisions clung to the pattern. Nigeria Courts, as legatees of the English common law heritage, embraced the English concept of locus standi. In doing so, however, they would appear to have merged the narrow and restrictive concept of private law (cause of action test) with the requirements of public law. PER ANTHONY OGAKWU, J.C.A.

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

ECOBANK NIGERIA LIMITED APPELANT(S)

And

1) ANCHORAGE LEISURES LIMITED 2. SILOAM GLOBAL SERVICES LIMITED 3. HONEYWELL FLOUR MILLS PLC RESPONDENT(S)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court, Lagos Division, Coram Judice: Faji, J., in SUIT NO. FHC/L/CS/1219/2015: ANCHORAGE LEISURES LTD EC& ORS vs. OBANK NIGERIA LIMITED delivered on 31st May, 2019. The Respondents herein, as Plaintiffs before the lower Court commenced the action claiming the following reliefs:
“a) A DECLARATION that the Plaintiffs (as customers), by the agreements reached at the meeting of July 22, 2013 and December 12, 2013 with the Defendant (as banker to the Plaintiffs) are not indebted to the Defendant in any amount, apart from the agreed sum of N3,500,000,000.00 (Three Billion, Five Hundred Million Naira) as full and final settlement/liquidation of their indebtedness.
b) A DECLARATION that the Plaintiffs, having paid the sum of N3,500,000,000.00 to the Defendant as full and final liquidation of their indebtedness as agreed, the Plaintiffs have performed all their repayment obligations in respect of the said indebtedness.
c) A DECLARATION that having fully performed their repayment obligations by the repayment of the sum of

N3,500,000,000.00 to the Defendant, the Plaintiffs are entitled to:
iv. The issuance of letters of discharge from indebtedness from the Defendant.
v. A release of all the security(ies) for which the already liquidated indebtedness was collateralised.
vi. An update of the status of Plaintiffs’ account on the Central Bank of Nigeria’s Credit Risk Management System (CRMS) Portal from non-performing loan accounts
d) AN ORDER mandating the Defendant to forthwith issue Letters of Discharge from Indebtedness to the Plaintiffs.
e) AN ORDER mandating the Defendant to release to the Plaintiffs, all the security(ies) and collateral used to secure the already liquidated indebtedness to the Defendant.
f) AN ORDER mandating the Defendant to update the status of the Plaintiffs’ account on the Central Bank of Nigeria’s CRMS Portal from non-performing loan accounts.
g) AN ORDER OF PERPETUAL INJUNCTION restraining the Defendant, either by itself, its directors, employees, privies, assignees, successors-in-title or anybody acting on their behalf, from making any representation in any form, to any third party suggesting,

indicating and/or implying that any of the Plaintiffs or their directors, parent company and/or subsidiaries is/are indebted to it in any way.
h) Cost of this action assessed at N100, 000,000.00.”

The matter went to trial based on the pleadings filed and exchanged by the parties; and after the full blown trial, the lower Court entered judgment in favour of the Respondents as claimed. The Appellant was dissatisfied with the judgment and appealed against the same. The first Notice of Appeal was filed on 11th June, 2019, while the second Notice of Appeal, on the basis of which the appeal was argued, was filed on 17th June, 2019. The scarified judgment of the lower Court is at pages 1087-1130 of Volume II of the Records of Appeal, while the extant Notice of Appeal is at pages 1-13 of the Additional Record of Appeal compiled by the Appellant.

The Records of Appeal are in two volumes and there is the Additional Records of Appeal compiled and transmitted by the Appellant. On their part, the Respondents compiled and transmitted three Volumes of Additional Records of Appeal. The parties filed and exchanged briefs of argument which learned senior

counsel for the parties adopted and relied upon at the hearing of the appeal. The Appellant’s Brief was filed on 20th September, 2019, while the Respondent’s Brief was filed on 27th May, 2020, but deemed as properly filed on 17th June, 2020. The Appellant filed a Reply Brief on 17th September, 2020, but the same was deemed as properly filed on 29th September, 2020.
The Appellant crafted six issues for determination as follows:
a) “Whether the Lower Court erred in law and violated the trite doctrine of stare decisis when he refused and/or failed to countenance and follow the various decisions of the Supreme Court and the Court of Appeal referred to it by the Appellant’s counsel, which said decisions are on all fours with the Respondents’ case at the lower Court?” {distilled from ground 3}.
b) “Whether from the facts and circumstances of the case herein, the Lower Court erred in law, and consequently occasioned grave injustice on the Appellant when he held that the Respondents have the locus standi to file the suit at the lower Court to enforce the agreement reached by one Honeywell Group Limited and the

Appellant since the “agreement reached thereat were for the benefit of the Respondents?” (distilled from grounds 1 and 2)”
c) “Whether the Lower Court erred in law when he failed to dismiss the suit, having found that no consensus ad idem was reached by the parties with regards to the meeting of 22nd day of July, 2013, same being the foundation of the suit?” {distilled from ground 4}
d) “Whether the Learned Trial judge erred in law when he held that because the Appellant allegedly failed to dispute the correspondence of 10th January, 2104 [sic] {Exhibit A4}, the said correspondence captured the agreement reached at the meeting of 12th December, 2013 and hence there was indeed an agreement reached between the parties on the 12th day of December, 2014 as contained in Exhibit A4?” {distilled from grounds 5, 6 and 7}.
e) “Whether the Lower Court erred in law and misconstrued the facts of the suit when he held that the Appellants did not inform the Respondents when the facility elapsed and also when the Central Bank Examiners left the Appellant’s office?” {distilled from ground 8}

f) “Whether from the peculiar facts and circumstances of the case, the Lower Court erred in law when he unwittingly affirmed the decision of the Bankers’ Committee and held that the said decision is in line with his decision?” {distilled from ground 9}The Respondents on their part nominated four issues for determination, scilicet:
i) Whether the lower Court correctly resolved the issues of locus standi of the Respondents as Plaintiffs and their cause of action to institute the case at the lower Court. (Grounds 1, 2 and 3 of the Notice of Appeal)
ii) Was the lower Court right in law, to have found that Appellants did not inform the Respondents about the exit of the CBN examiners and the lapse of the agreement for the payment of 3.5 billion Naira before Respondents made full payment of the said sum. (Ground 8 of the Notice of Appeal)
iii) Did the lower Court correctly resolve the issues relating to the meetings of 22nd July, 2013 and 12th December, 2013. (Grounds 4, 5, 6 and 7 of the Notice of Appeal)
iv) Is the decision of the lower Court liable to be set aside because of the said Court’s findings in respect of

the Banker’s committee. (Ground 9 of the Notice of Appeal).

The issues distilled by the parties are idoneous. Even though the issues as formulated do not coincide in terms of numbers, in terms of content, however, all the six issues raised by the Appellant are encapsulated in the Respondent’s four issues. I would therefore use the issues as distilled by the Appellant as the lodestar in considering the submissions of learned counsel and resolution of this appeal. I will take issue numbers one and two together.
ISSUE NUMBERS ONE AND TWO
a) Whether the Lower Court erred in law and violated the trite doctrine of stare decisis when he refused and/or failed to countenance and follow the various decisions of the Supreme Court and the Court of Appeal referred to it by the Appellant’s counsel, which said decisions are on all fours with the Respondents’ case at the lower Court?
b) Whether from the facts and circumstances of the case herein, the Lower Court erred in law, and consequently occasioned grave injustice on the Appellant when he held that the Respondents have the locus standi to file the suit at the lower Court to

enforce the agreement reached by one Honeywell Group Limited and the Appellant since the “agreement reached thereat were for the benefit of the Respondents?”

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant’s submissions on these issues bestraddle pages 4-13 of the Appellant’s Brief. The apercu of the Appellant’s submission is that based on the doctrine of stare decisis, the decisions of the Supreme Court and higher Courts are binding on the lower Courts where the facts are similar and identical. The cases of DALHATU vs. TURAKI (2003) 15 NWLR (PT 843) 310 and EPEROKUN vs. UNIVERSITY OF LAGOS (1986) 4 NWLR (PT 34) 162 were referred to. It was contended that the lower Court was wrong when it failed to countenance or follow the decisions of the superior Courts cited to it on the settled law that it is only a party to an agreement or contract that can enforce the same. The failure of the lower Court to consider the said decisions and distinguish them, if it could not follow them, it was opined, occasioned a miscarriage of justice and was fatal to the judgment of the lower Court vide the cases of USIOBAIFO vs. USIOBAIFO (2005) 3 NWLR (PT. 913) 665 at 689.

DINGYADI vs. INEC (2011) LPELR-950 (SC) at 57 and ADEYEMI vs. ACHIMU/NDIC/ASSURANCE BANK LTD (2015) LPELR-24379 (CA) at 34-35.

The Appellant further submits that if the lower Court had countenanced the authorities cited to it, it would not have held that the Respondents had the locus standi to file the suit to enforce the agreement reached by one Honeywell Group Limited, because the agreement was for the benefit of the Respondents. It was asserted that from the reliefs claimed, the action was based on the meetings and agreements reached between the Appellant and Honeywell Group Limited and that the Respondents who were not parties to the agreement cannot enforce the same even if it is for their benefit. It was maintained that the Respondents had no locus standi to enforce the said agreements since Honeywell Group Limited was a separate and distinct legal personality from each of the Respondents; and that the position remained unchanged even if Honeywell Group Limited was the parent or sister company of the Respondents. The cases of EREBOR vs. MAJOR & CO NIG LTD (2001) 5 NWLR (PT. 706) 300 and UNION BEVERAGES LTD vs. PEPSICOLA INT. LTD

(1994) 3 NWLR (PT 330) 1 at 16 were relied upon.

The Appellant, invoking the doctrine of privity of contract, submitted that a contract or agreement cannot confer rights or impose obligations on strangers to it, and that beneficiaries of an agreement who are not parties to the agreement have no legal right to enforce the same. It was consequently contended that even if the meetings at which the agreements were reached were held on behalf of the Respondents and the agreements reached was for their benefit, the Respondents lack the locus standi to enforce the agreement reached on their behalf by Honeywell Group Limited, which was not a party to the action. The cases of KSO & ALLIED PROD. LTD vs. KOFA TRAD. CO. LTD (1996) 3 NWLR (PT 436) 244 at 263, UNION BEVERAGES LTD vs. PEPSICOLA INT. LTD (supra) at 16, REBOLD INDUSTRIES LTD vs. MAGREOLA (2015) LPELR-24612 (SC) and B. M. LTD vs. WOERMANN-LINE (2009) 13 NWLR (PT 1157) 149 at 180 were called in aid. The Appellant conclusively submitted that the Respondents, not having the locus standi, did not have a reasonable cause of action against the Appellant vide ACCORD PARTY vs. THE GOVERNOR OF KWARA STATE (2009) LPELR-3584 (CA).

CHEVRON (NIG) LTD vs. L. D. (NIG.) LTD (2007) 16 NWLR (PT 1059) 168 at 177, OWODUNNI vs. REGISTERED TRUSTEES OF C. C. C. (2000) 10 NWLR (PT 675) 315 at 339 and SHIBKAU vs. A-G ZAMFARA STATE (2010) 10 NWLR (PT 1202) 312 at 340.

SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
The Respondents’ submissions on these issues which is argued as issue number one in the Respondents’ Brief dominates pages 5-16 of the Respondents’ Brief. The quiddity of the Respondents’ submission is that the issue of the capacity of the Respondents to maintain the action vis-à-vis Honeywell Group Limited had been settled by the decision of this Court in APPEAL NO. CA/L/1217/2015[sic]: ECOBANK NIG LTD vs. ANCHORAGE LEISURES LTD delivered on 30th March, 2016 and reported in LPELR-40220 (CA). The said decision of this Court was said to have been affirmed by the Supreme Court in ECOBANK NIG. LTD vs. ANCHORAGE LEISURES LTD (2018) 18 NWLR (PT 1651) 201. It was posited that by the doctrine of stare decisis, this Court is bound by its own decisions, more so, when the decision has been affirmed by the apex Court

vide TERVER vs. THE STATE (2015) LPELR-24787 (CA) 1 at 20, ALADINMA MEDICAL LTD vs. REGISTERED TRUSTEES, OCM (2012) 5 NWLR (PT. 1294) 441 and ATOLAGBE vs. AWUNI (1997) 9 NWLR (PT. 522) 536 at 564.

The Respondents submit that it is the statement of claim that constitutes the relevant document for the determination of a party’s locus standi and that the ordinary grammatical meaning of paragraphs 10, 11, 12, 13 and 19 of the Statement of Claim disclose the pleading that the Respondents, along with and under the auspices of Honeywell Group, to which they all belong, discussed with the Appellant to agree on the indebtedness and terms of repayment; making it clear that the Respondents were not strangers to the agreement and therefore had the locus standi. The cases of ADEYEMI vs. OPEYORI (1976) 9-10 SC 31, AMAH vs. NWANKWO (2007) NWLR [no volume stated] (PT. 1049) 522 at 576-577, ADAMS vs. UMAR (2009) 5 NWLR (PT. 113) [sic] 41 at 130 and OGBONNA vs. A-G IMO STATE (1992) 1 NWLR (PT 220) 642 at 2 [sic] were referred to. The Respondents contended that the finding of the lower Court that the Respondents were party to and actively involved in the subject matter of

the meetings and therefore cannot be denied locus standi was not appealed against and had consequently settled the issue for all times vide ECOBANK NIG LTD vs. ANCHORAGE LEISURES (supra) (SC) at 221-222.

The Respondents further argue that the Respondents’ witness, the PW1, gave evidence which was not discredited under cross examination that she attended the meeting with Dr. Oba Otudeko on behalf of the Respondents, along with other top executives and decision makers of the Respondents; thus showing that Dr. Oba Otudeko acted on behalf of and as agent of the Respondents as found by this Court in its previous judgment in CA/L/1270/2015. It was stated that at best the action was by the agent of a disclosed principal in which locus was invested only in the disclosed principal. The cases of KHONAN vs. ELIZABETH FIFE JOHN (1939) 15 NLR 12 at 15 and NIGER PROGRESS LTD vs. NORTH EAST LINE CORPORATION (1989) 3 NWLR (PT. 107) 63 at 83 were called in aid.

The Respondents submit that their legal capacity derives from the banker/customer relationship with the Appellant and that all the reliefs claimed are personal to the Respondents, such that the

Respondents cannot be referred to as busybodies. The cases of B. B. APUGO & SONS LTD vs. ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD (2016) LPELR-40598 and A-G RIVERS STATE vs. LAGOS CHAMBER OF COMMERCE AND INDUSTRY (2018) LPELR-45944 at 13 were cited in support. It was stated that there was no appeal against the specific findings of the lower Court that payments were made for the credit of the Respondents and that the contracts for facility was individually entered with the Respondents, who can be sued in case of default and not Honeywell Group. The unappealed finding, it was opined, even if wrong, cannot be interfered with on appeal vide GODWIN PIUS vs. THE STATE (2016) 9 NWLR (PT 1517) 341 at 354-355.

It was further contended that the Appellant cannot approbate and reprobate, in that having acknowledged receipt of payment in liquidation of debt owed by the Respondents, it cannot be heard to argue that the Respondents cannot enforce rights on the said payment. The cases of AJIDE vs. KELANI (1985) NWLR [no volume stated] (PT 12) 248 and B. B. APUGO & SONS LTD vs. ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD (supra) at 27-28 were relied upon. It was

maintained that the Appellant did not frontally challenge the findings of the lower Court at pages 1118-1121 of the Records on which it anchored its judgment. The Respondents proceeded to distinguish the cases which the Appellant argued that the lower Court failed to countenance and submitted that the ratio of a case does not willy-nilly apply to cases where the surrounding circumstances are different and that the doctrine of stare decisis thrives where the facts of the cases are on all fours. The cases of OKAFOR vs. NNAIFE (1987) 4 NWLR (PT 64) 129 at 137 and NJC vs. AGUMAGU (2015) 10 NWLR (PT 1467) 365 at 421-422 were referred to. It was conclusively iterated that the decision of this Court in the 2016 decision (CA/L/1270/2015), which was affirmed by the apex Court, had resolved the same issues being regurgitated in this matter.

APPELLANT’S REPLY ON LAW
The Appellant submits that the Respondents raised before the lower Court the contention that the issue had been earlier decided by superior Courts but that the lower Court tacitly overruled the argument by determining the issue afresh without referring to the said previous decisions. The

Respondents, it was contended, could therefore not raise the contention again without filing a cross appeal or Respondents Notice of Contention. It was asserted that the argument of the Respondents did not emanate from the ratio decidendi of the lower Court. The cases of NDIC vs. KOLEOSHO (2006) ALL FWLR (PT. 312) 2099 at 2112, DAHIRU vs. APC (2016) LPELR-42089 (SC), DORNIER AVIATION NIGERIA AIEP LTD vs. OLUWADARE (2006) LPELR-11579 (CA), UNION BANK vs. MORONFOYE (2017) LPELR-43164 (CA) and EZE vs. ANI (2016) LPELR-42123 (CA) were relied upon.

The Appellant further submitted that the issue of the locus standi of the Respondents to maintain the action had not been decided on the merits as the issue raised before Idris, J. (as he then was), before the matter started de novo before Faji, J., was discountenanced by Idris J., for having been raised in the Reply on Points of Law; which was upheld by both this Court and the apex Court. It was consequently contended that not having been decided on the merits, the plea of res judicata will not succeed vide ISONGUYO vs. EYO (2016) LPELR-41206 (CA). The Appellant contended that the issue is not whether there exists a

banker customer relationship between the Appellant and the Respondents, but whether the Respondents have the locus standi to commence the action predicated on an alleged agreement entered on their behalf by a third party. It was maintained that the Respondents’ pleadings does not constitute evidence and that the documentary evidence before the Court shows that the alleged agreement reached was between the representatives of Honeywell Group Limited and the Appellant; such that the Respondents cannot enforce the agreement.

It is the further submission of the Appellant that grounds 1 and 3 of the Notice of Appeal challenge the finding of the lower Court that the Respondents were parties to the agreement. It was asserted that the documentary evidence before the Court cannot be varied by the testimony of PW1. The issue of Honeywell Group Ltd being an agent of the Respondents was said to be a fresh issue which could only be raised with the leave of the Court and that there is no agency in the case of a wrongdoer vide B. B. APUGO & SONS LTD vs. O. H. M. B. (2005) 17 NWLR (PT 954) 305 at 240. The Appellant posits that the facts in APUGO’S case are

distinguishable from the facts of this matter as in the said case the agreement was entered for and on behalf of Orthopaedic Hospitals Management Board and which duly signed the agreement as opposed to the instant case where all the correspondences were written and signed by Honeywell Group Limited. The law, it was maintained, remains that a stranger to a contract cannot enforce the terms. The Appellant referred to grounds 2, 4, 5, 6, 7 and 8 of the Notice of Appeal and contended that they were complaints against the findings of the lower Court. It was conclusively submitted that for the doctrine of stare decisis to apply, it has to be shown that the same points of law or issues come up in litigation and not where the facts of the case are the same since no two cases can ever have the same parties, issues of law, subject matter etcetera. The meaning given to stare decisis in the case of SPDC NIG LTD vs. EZEUKWU (2010) LPELR 4911 and CLEMENT vs. IWUANYANWU (1989) 3 NWLR (PT. 107) 39 at 54 was referred to.

RESOLUTION OF ISSUE NUMBERS ONE AND TWO
Let me start by saying that the issues framed for determination in an appeal should be such that are so

crucial that if decided in favour of a party, such a party will be entitled to judgment. See UGO vs. OBIEKWE (1989) 1 NWLR (PT 89) 566 at 580, OKOYE vs. NCFC (1991) 6 NWLR (PT 199) 501, KALU vs. ODILI (1992) LPELR (1652) 1 at 21-22 and MANCHA vs. EMUKOWATE (2017) LPELR (43113) 1 at 9-12. It is against this background that I view with askance, the Appellant’s issue number one and what it is designed to achieve beyond having strictures passed on the lower Court. I say so because while it may be wrong for the lower Court to have failed to countenance and follow the decisions of superior Courts cited to it, the resolution of the said issue in favour of the Appellant, would in no way result in the appeal being decided in favour of the Appellant, if in actual fact, countenancing and following the said decisions would not have resulted in the lower Court giving a favourable decision for the Appellant. I say no more and decline to be inveigled into making any uncomplimentary remarks about the presiding judge at the lower Court who, like in all appeals against decisions in a matter, has not had the benefit of a hearing in this appeal.

Howbeit, I would concern myself in the resolution of these issues with whether the decision of the lower Court that the Respondents have locus standi to maintain the action is the correct decision. Let me state at this outset that the issue of locus standi raised takes its root from grounds 1 and 2 of the Notice of Appeal. The said grounds shorn of their particulars read as follows:
“GROUND (1) ONE
ERROR OF LAW
The Learned trial judge erred in law and on the established facts when he held that the Respondents have the locus standi to file the suit at the lower Court in order to enforce the ‘alleged’ agreement reached by one Honeywell Group Limited and the Appellant herein at the meetings of 22nd July and 12th December, 2013 respectively, since the said meetings were allegedly ‘held and the agreements reached for the benefit of the Respondents”.
“GROUND 2 (TWO)
ERROR OF LAW
The Learned trial judge erred in law, on the established facts and consequently arrived at an erroneous decision when he held that since the meetings of 22nd July and 12th December, 2013 were allegedly held (and the alleged agreements

reached at the meetings were) for the benefit of the Respondents, they {the Respondents} have the locus standi to file the suit at the lower Court in order to enforce the alleged agreement reached {by one Honeywell Group Limited and the Appellant herein} at the said meetings.”
It is instructive that there is nothing in the above grounds which dwells on the resolution of whether the Respondents have a cause of action. The Respondents in their issue one as formulated have interrogated whether the lower Court correctly resolved the issue of the Respondents’, as Plaintiffs’, cause of action. As the said question of cause of action is not disclosed in the grounds of appeal, I will not proceed on any such odyssey with the Respondents. In arriving at the conclusion that the Respondents had locus standi, the lower Court reasoned and held as follows at pages 1118-1121 of the Volume II of the Records:
“The Defendant has contended that Plaintiffs have no locus since they were not parties to the agreement in issue.
The meetings of 22/7/13 and 12/12/13 had in attendance representatives of the Honeywell Group and the Defendant.

The meetings discussed the various facilities granted to the 3 Plaintiffs by the Defendant. The aim of the meeting was to reach an agreement on how the liabilities were to be discharged. The Honeywell Group team discussed on behalf of the 3 Plaintiffs herein and had authority to bind them. The payments were made for the credit of the 3 Plaintiffs and it was the acts of the 3 Plaintiffs’ in the process of settling their liabilities that are in issue.
Plaintiffs claim centres on the meetings of 22/7/13 and 12/12/13 as it relates to the indebtedness of the Plaintiffs. The agreements reached thereat were for the benefit of Plaintiffs and had an effect on the existing Banker/Customer relationship between Plaintiffs and Defendants. The agreements at the meetings being connected to the liabilities arising from Banker/Customer relationship between Plaintiffs and Defendants, the Plaintiffs being parties to the Banker/Customers agreements stood to be affected by the decisions at the said meeting and its aftermath.
Indeed, Defendants related to Honeywell Group with this in mind and when relationships broke down reverted to the liabilities as per the

Banker-Customer transactions. Indeed, the parties related based on Honeywell Group being the month-piece [sic] of the 3 Plaintiffs. The 3 Plaintiffs were therefore party to and actively involved in the subject-matter of the meetings. They cannot therefore be denied locus.
The converse is, should Defendant decide to sue for the debt, it surely would not sue Honeywell Group. It would sue the 3 Plaintiffs individually since the contracts were with them.
There was clearly no transfer of liability from the 3 Plaintiffs to the Honeywell Group. The meetings were to resolve issues concerning related companies and it was thus more sensible to discuss through one prism. The subject-matter was clear- the indebtedness of the 3 Plaintiffs. The end result was clear-how Defendant would get its money back from the 3 Plaintiffs.
I do not therefore agree that Plaintiffs were not parties to the agreements made on 22/7/13 and 12/12/13. Those agreements were within the context of the indebtedness of the Plaintiffs and they are bound by same. They can therefore sue on same as they have done. The Defendant had a relationship of creditor/debtor with each Plaintiff and

the meetings were for resolution of how the obligations arising therefrom will be discharged.
I therefore find that Plaintiffs have locus in respect of a claim in which Plaintiffs posit that based on the agreements reached at the meetings of 22/7/13 and 12/12/13 respectively, Plaintiffs are no longer indebted to the Defendants having paid the sum of N3.5Billion in full and final settlement and as agreed at the said meetings.”

The lower Court in deciding the action did not rely much on the testimonial evidence; it stated that the action turned on interpretation of documents and arrived at its decision based on the interpretation it placed on the documentary evidence. I would equally be so guided in the resolution of this appeal since it is settled law that an appellate Court is in as good a stead as the trial Court in the evaluation of documentary evidence: UNION BEVERAGES LTD vs. PEPSICOLA INT’L LTD (1994) LPELR (3397) 1 at 11-12, GONZEE (NIG) LTD vs. NERDC (2005) LPELR (1332) 1 at 16, IWUOHA vs. NIPOST (2003) 4 SC (PT II) 37 and REV. KING vs. THE STATE (2016) LPELR (40046) 1 at 49.

But first, the Respondents forcefully contended

that the issue of locus standi of the Respondents to maintain the action has been settled by the decision of this Court in CA/L/1270/2015 and affirmed by the apex Court. If this is correct, then the Appellant’s contention will be dead on arrival. But is it correct? We will find out in a trice. The decision of this Court in CA/L/1270/2015 which was delivered on 30th March, 2016 (per Oseji, JCA) [now JSC] was consequent upon the decision of the lower Court dismissing the Appellant’s objection that the lower Court did not have jurisdiction to entertain the action which was founded on a simple contract and did not disclose a cause of action. (The said objection is at pages 1209-1218 of Volume 3 of the Additional Records of Appeal compiled by the Respondents). On appeal to this Court in the said APPEAL NO. CA/L/1270/2015, the sole issue thrust up for determination was:
“Whether the lower Court has jurisdiction to hear and determination the Suit in this appeal as presented in the Respondents’ statement of claim predicated on a simple contract and showing no cause of action against the Appellant herein?”

From the issue for determination, it is effulgent that the question of locus standi was not in issue. In resolving this issue this Court stated as follows at pages 30, 35-36 and 38-39 of the judgment:
On page 30:
“In the instant case, the Appellants stance for challenging the jurisdiction of the lower Court to entertain the Suit is that it is borne out of a simple contract flowing from an agreement reached between the Appellant and the Honeywell Group Ltd. therefore by virtue of Section 251 (1) (d) of the 1999 Constitution (as amended) it is the State High Court and not the Federal High Court that has jurisdiction to hear the Suit.
For the Respondents, Suit No FHC/L/CS/1219/2015 which they filed at the lower Court is based on a banker/customer relationship which they seek to enforce the agreement reached between them and the Appellant on the 22-7-2013 in which case both the Federal and State High Court have concurrent jurisdiction by virtue of the proviso to Section 251(1) (d) of the 1999 Constitution.”
On pages 35-36:
“The Appellant sees the transaction as a simple contract arising from the agreement made on 22-7-2013 and as such only

the State High Court has jurisdiction to hear it but for the Respondents, the transaction goes beyond 22-7-2013 and it is borne out of a banker/customer relationship and as such both the Federal and State High Courts have jurisdiction to entertain the Suit.
As earlier stated, when the issue of jurisdiction to entertain a Suit comes into play, the law insists that recourse must be had to the statement of claim and reliefs sought by the Plaintiff. See PDP VS SYLVA Supra and A.G KWARA STATE V OLAWALE Supra. The Respondents’ statement of claim is contained in pages 6 to 12 of the Record of Appeal dated 17-12-15.
I have carefully perused the said statement of claim with particular reference to paragraphs 6 to 24 as well as the reliefs sought in paragraph 45 and the only rational conclusion, I can draw therefrom is that there is a banker/customer relationship between the Respondents and Appellant. It did not disclose any fact based on simple contract and whatever was done by OBA OTUDEKO as chairman of Honeywell Group Ltd was strictly for and on behalf of the Respondents and there is no question of Novation or transfer of liability from the

Respondents to the Honeywell Group Ltd as alluded to by the Appellant. The said statement of claim also show that the Respondents have a genuine cause of action that entitles them to file the Suit.”
On pages 38-39:
“From the above scenario, I fail to see the basis for the assertion by Learned Senior Counsel for the Appellant that the agreement of the 22nd July, 2013 created a simple contract between the parties and this removes the Suit from the juris diction of the Federal High Court to the State High Court.
In my humble view, the meeting of 22-7-2013 and the agreement reached therein to reduce the Respondents’ debt from N5.5 Billion to N3.5 Billion is still part of the transaction involving a bank and its customers as creditor and debtor whereby they explored acceptable ways and methods in which the credit facilities granted by the Appellant to the Respondents will be repaid via an enabling concession. The issue of a simple contract being created from the said 22-7-2013 agreement does not therefore arise.”
The above pericope from the decision of this Court in CA/L/1270/2015 is as clear as crystal that it did not

deal with the issue of locus standi. Indeed, I have gone through the lead judgment of my learned brother, Oseji, JCA (now JSC) with the finery of a toothcomb and I was not able to find where locus standi was discussed and dealt with in the said judgment. As a matter of fact, I did not find any mention of the phrase locus standi or its related derivatives of standing or title to sue, used or mentioned anywhere in the entirety of the forty-two page lead judgment. Accordingly, I am not at one with the assertion of the Respondents that the said decision resolved the question of the locus standi of the Respondents. No. It did not.
Now, seeing that the decision of this Court in CA/L/1270/2015 did not deal with the vexed issue of the Respondents’ locus standi, could the decision of the apex Court in the appeal from the said judgment of this Court have dealt with and decided the said issue? We turn to the said decision. The cicerone in this regard will be the apex Court decision as reported in (2018) LPELR (45125). The apex Court in dealing with the appeal utilised the issues crafted by the Respondents therein, who are also the Respondents before us.

The said issues as reproduced at page 17 of the LPELR report of the case are as follows:
“(i) Whether the Lower Court was right to have affirmed the decision of the trial Court to assume jurisdiction on the claim before it arising out of a banker-customer relationship.
(ii) Whether the Lower Court was correct in its resolution of the issue of cause of action, having considered the entire circumstances and facts of the case.
(iii) Did the decision of either of the two Lower Courts breach appellant’s right to fair hearing.”
It seems to me lucent from the issues which the apex Court dealt with as reproduced above that the issue of the locus standi of the Respondents to maintain the action did not fall for determination by the apex Court. It is limpid from the reasoning of the apex Court in the lead judgment of Odili, JSC that the decision turned on whether the action was based on a simple contract, which was not within the purview of the jurisdictional competence of the Federal High Court, or whether it was based on a banker customer relationship in which the Federal High Court could exercise jurisdiction with the State High

Courts. It was held that the action was predicated on a banker/customer relationship and that the Federal High Court was imbued with jurisdiction by Section 251 (1) (d) of the 1999 Constitution as amended. Instructively, on the issue of cause of action the apex Court held as follows at pages 32-33 of the LPELR report:
“Indeed the Lower Court could only have decided the issue of cause of action on the same basis as the trial Court’s decision in reiteration that a reply address of counsel can neither be a re-argument nor an avenue to raise fresh (issues) not contained in the initial address or that was outside the pleadings of the plaintiff. Also to be brought in is the fact that the finding of the trial Court discountenancing the objection of the appellant on the cause of action as it relates to third party negotiations was not appealed in the Court below and so remains binding and cannot be reopened at this stage without a ground of appeal so holding it.”
By all odds, I make bold to assert that it is translucent that the issue of locus standi of the Respondents, which is at the pith of issue numbers one and two now being considered

in this judgment was not dealt with by both this Court and the apex Court.
The Respondents have rightly submitted that the decision of this Court is binding on it. That is rudimentary law vide YOUNG vs. BRISTOL AEROPLANE CO. LTD (1944) 2 ALL ER 293 at 300, USMAN vs. UMARU (1992) LPELR (3432) 1 at 21, OKEKE vs. THE STATE (1995) 4 NWLR (PT 352) 672 and APARI vs. HOSE (1999) LPELR (6650) 1 at 8. It is equally abecedarian law that the decision of the apex Court is binding on this Court; however as already demonstrated, there has been no decision on the said issue of locus standi. It therefore behoves this Court to consider and resolve the said issue which has been properly raised in this appeal.

narrow and rigid conception of locus standi means that it is only a person who has suffered a specific legal injury by reason of actual or threatened violation of his legal right or legally-protected interest who can bring an action for judicial redress. In effect, the rule with regard to locus standi postulates a right-duty pattern which is commonly found in private law litigation. Subsequent English decisions clung to the pattern. Nigeria Courts, as legatees of the English common law heritage, embraced the English concept of locus standi. In doing so, however, they would appear to have merged the narrow and restrictive concept of private law (cause of action test) with the requirements of public law.

The Appellant anchors its contention that the Respondents do not have locus standi on the premise that the Respondents are not parties to the agreement on which the action was founded. Its submission is that even though the agreement may have been made for the benefit of the Respondents, they were still strangers to the same and cannot sue on the agreement.
Now, as a general principle of law based on the doctrine of privity of contract, a contract,

cannot as a general rule, confer rights or impose obligations under it on any person, except the parties to it. In aliis verbis, only parties to a contract can sue or be sued on the contract. A stranger to the contract can neither sue nor be sued on the contract: MAKWE vs. NWUKOR (2001) 14 NWLR (PT 733) 356, IDUFUEKO vs. PFIZER PRODUCTS LTD (2014) 12 NWLR (PT. 1420) 96 at 101 and REBOLD INDUSTRIES LTD vs. MAGREOLA (2015) 8 NWLR (PT. 1416) 210. I have already set out the reliefs claimed by the Respondents. The said reliefs are based on agreements said to have been reached at meetings held on July 22, 2013 and December 12, 2013. From the documentary evidence, the meetings were held between the Appellant and the Chairman of Honeywell Group Limited. The deliberations at the meetings were conveyed in letters written by Honeywell Group Limited dated 22nd July, 2013 and 10 January, 2014. To underscore the dramatis personae at the meetings, I will reproduce the opening paragraphs of the said letters which were tendered as Exhibits A and A4?
Exhibit A, the letter of 22nd July, 2013 reads:
“We write further to our various discussions and in particular the

meeting of July 22, 2013 between your Managing Director, Mr. Jubril Aku and our Chairman, Mr. Oba Otudeko, wherein agreements were reached with respect to settlement of the indebtedness of our Group to Ecobank Nigeria Plc.”
The letter of 10 January, 2014, which references the meeting of 12th December, 2013 opens as follows:
“We write further to our various discussions and in particular the meeting held at our office on 12th of December, 2013 between, our Chairman Mr. Oba Otudeko MFR and a team of Senior Executives of Eco-bank Plc led by your Managing Director Mr. Jubril Aku, wherein certain conclusions were reached with respect to the final cash inflowing payment on the agreed resolution N3.5 Billion settlement amount of our outstanding due to your bank.”
The above documents speak for themselves and are explicit as to the meeting and agreement reached being between the Appellant and the Chairman of Honeywell Group Limited. It is instructive that while the letter of the 10th January, 2014 indicated that the Appellant had a team in the discussions, there is nothing in the letters suggesting, even if remotely, that the Respondents

were involved in the discussions and agreement. Even though the Respondents sole witness, who is a staff of Honeywell Group Limited, testified that the Respondents were part of the meeting and agreement, such testimonial evidence will not displace the documentary evidence. Furthermore, the Respondents may have pleaded that they took part in the meetings; but then, the question of locus standi was not considered in limine. It was considered after evidence had been adduced, so at that stage of the proceedings, it is the credible evidence that was adduced that a Court will have recourse to in order to resolve the issue; not just the averments in the pleadings.
The legal position is that where there is oral and documentary evidence, the documentary evidence should be used as a hanger from which to assess the oral testimony: FASHANU vs. ADEKOYA (1974) 6 SC 83, KIMDEY vs. MILITARY GOVERNOR OF GONGOLA STATE (1988) 2 NWLR (PT 77) 445 and HAWAD INTERNATIONAL SCHOOLS LTD vs. MIMA PROJECTS (2003) 36 WRN 57 at 69. This is so because documentary evidence which is shown to be genuine does not lie, but oral evidence may tell a lie. The Chinese saying is that the

faintest ink is stronger that the best memory. The documentary evidence is therefore to be used as a base from which to assess the oral evidence: UDEORAH vs. NWAKONOBI (2003) 4 NWLR (PT 811) 643 at 674-675. Consequently, when the documentary evidence is used as a base on which to assess the testimony of the Respondent’s sole witness, there can be no doubt that any agreement was between the Appellant and Honeywell Group Limited; irrespective of the fact that it may have been for the benefit of the Respondents. The legal position is not affected by the fact that the Respondents may be part of the Honeywell Group Limited as in the eyes of the law they remain separate and distinct legal entities. See UNION BEVERAGES LTD vs. PEPSICOLA INT’L LTD (supra).
To further underscore that the Respondents are strangers to any agreement reached, I will rehash the facts of this matter as admirably redacted by Odili, JSC at pages 1-4 of LPELR report of the case of ECOBANK NIG LTD vs. ANCHORAGE LEISURES LTD & ORS. Hear my Lord:
“Respondents’ grouse in presenting the suit in this appeal is that Appellant herein allegedly failed and/or neglected to

adhere to an ‘in-principle’ agreement reached between a certain Honeywell Group Limited (not a party in the suit of this appeal) and the appellant herein as shown in the letters dated 22nd July, 2013. (compiled at pages 31 and 32 of the record of appeal, Vol. 1).
As shown by the letters, respondents herein were indebted to the appellant bank over sums in excess of N5.5 Billion following which Honeywell Group Limited proposed to the appellant bank that the latter grant to it concessions on the total indebtedness. Appellant indeed, gave the concession as sought by Honeywell Group Limited that out of the entire N5.5 Billion outstanding, the negotiating Honeywell Group Limited pay a concessionary sum of N3.5 Billion on terms and conditions mutually agreed at the meeting of 22nd July, 2013.
Further agreed at the 22nd July, 2013 meeting was that the negotiating third party, Honeywell Group Limited pay an immediate sum of N500,000,000.00 whilst the remainder N3 Billion is paid in bullet point form and before the departure of the then visiting CBN examiners at the appellants bank, in August, 2013. It is necessary to add that the then visiting CBN

examiners were examining the appellants book on its exposures chief amongst which was the obligations subject of the 22nd July, 2013 ‘in-principle’ agreement.
In a letter dated 22nd July, 2013 the negotiating third party, Honeywell Group Limited proposed fresh terms so as to stagger the repayment of the N3 Billion balance contrary to the agreement earlier reached. The instructive paragraph in the letter by Honeywell Group Limited dated 22nd July, 2013 and compiled at page 31 of the record of appeal Vol.1 reads thus:-
‘As part of the verbal agreement reached at the meeting, we shall immediately pay the sum of N500 Million towards the facility. We propose that the balance of N3 Billion be paid in three equal half yearly instalments.’ (Emphasis supplied).
It is clear that the payment of N500 Million was as agreed in the meeting of 22nd July, 2013 while the proposed staggered repayments constitutes a fresh proposal outside the agreement of 22nd July, 2013.
In confirmation of the above and upon receipt of the fresh proposal, appellant herein immediately caused to be issued; a letter dated same 22nd July, 2013 (page 32 of

the record of appeal, Vol. 1) rejecting the new proposal and demanding a reversion to the agreement of 22nd July, 2013 in the following words:
‘Please note that the agreement was for a full and final payment of N3.5 Billion to be paid immediately by N500 Million on Monday July 22, 2013 and the balance to be paid immediately thereafter before the CBN examiners leave the Bank. Kindly therefore revert in line with the agreement.’
There is no record of Honeywell Group Limited’s immediate and/or prompt reaction to the above reproduced assertions.
Also by a letter dated 6th September, 2013 (pages 64-65) of the record of appeal, Vol.1) it was again admitted by the negotiating third party that agreement reached at the meeting of 22nd July, 2013 and for good order’s sake was for a bullet payment of N3.5 Billion.
By a letter dated 14th September, 2014 (at page 56 of the record of appeal, Vol.1) the appellant’s bank again informed the negotiating third party that the agreement of 22nd July, 2013 became extinct and frustrated in August, 2013 following the palpable breach as contained and proposed in the letter dated 22nd July, 2013.

However, that based on its unending proposal that the N3.5 Billion be deemed as full and final settlement of the obligations, appellant’s management submitted the fresh proposal to its board of directors and having considered same, the board rejected the offer.
Following the foregoing, respondents herein approached the trial Court seeking the reliefs in the originating processes…”
The above extract from the apex Court judgment is limpid that the agreement is between the Appellant and Honeywell Group Limited (which is not a party to the action). So clearly, the Respondents are not parties to the agreement; and not being parties to the agreement, the same can neither be enforced by them nor can it be enforced against them. The Respondents being strangers to the agreement is an inhibiting factor which obstructs and hinders them from instituting the action to enforce the said agreement. Totidem verbis, the Respondents do not have the locus standi to enforce any agreement between the Appellants and Honeywell Group Limited.
In holding that the Respondents had the requisite locus standi, the lower Court reasoned and held as follows at

pages 1119-1120 of Volume II of the Records:
“Plaintiffs claim centres on the meetings of 22/7/13 and 12/12/13 as it relates to the indebtedness of the Plaintiffs. The agreements reached thereat were for the benefit of Plaintiffs and had an effect on the existing Banker/Customer relationship between Plaintiffs and Defendants. The agreements at the meetings being connected to the liabilities arising from Banker/Customer relationship between Plaintiffs and Defendants, the Plaintiffs being parties to the Banker/Customers agreements stood to be affected by the decisions at the said meeting and its aftermath.
Indeed, Defendants related to Honeywell Group with this in mind and when relationships broke down reverted to the liabilities as per the Banker-Customer transactions. Indeed, the parties related based on Honeywell Group being the month-piece [sic] of the 3 Plaintiffs. The 3 Plaintiffs were therefore party to and actively involved in the subject-matter of the meetings. They cannot therefore be denied locus.”
I am unable to agree with the reasoning of the lower Court that the Respondents were imbued with locus standi because the

agreement was for their benefit and that if the agreement fell through the liabilities of the Respondents under the banker customer relationship would be impacted. The hornbook principle of law remains that a stranger to a contract cannot sue or be sued on the same. I iterate that the Respondents were strangers to the agreement, they consequently did not have the locus standi, standing or title to sue on the said agreement.

It is settled law that where there is want of locus standi, it goes to the jurisdiction of the Court, as want of locus standi denies the Court the requisite jurisdictional competence: DADA vs. OGUNSANYA (1992) LPELR (908) 1 at 24-25, EMEZI vs. OSUAGWU (2005) LPELR (1130) 1 at 16-17 and OPOBIYI vs. MUNIRU (2011) LPELR (8232) 1 at 17-18. The lower Court consequently did not have the jurisdiction to entertain the Respondents’ action and it ought to have struck the same out for want of locus standi of the Respondents to maintain the action. Indubitably, I resolve the issue in favour of the Appellant. The lower Court erred in law when it held that the Respondents have the locus standi to maintain the action.

The manner of resolution of the above issue ought to put to rest any further consideration of the other issues raised in this appeal since the want of jurisdiction is extrinsic to the adjudication. However, I do not lay any claim to infallibility or to being a repository of knowledge, this is an intermediate appellate Court; it may well be that I am wrong in the view I have expounded that the Respondents do not have locus standi to maintain the action. I will therefore proceed to consider the other issues raised so that in the event of a further appeal to the apex Court, the views of this Court on all the issues thrust up for determination would be before the apex Court. Consequently, I will next take the Appellant’s issue numbers three, four and five together as the central theme interrogated in the said issues is whether the lower Court rightly held that there was an agreement reached between the Appellant and Honeywell Group Limited. The said issues correspond with the Respondents’ issue numbers II and III which they also argued together.

ISSUE NUMBERS THREE, FOUR AND FIVE
c) Whether the Lower Court erred in law when he failed to dismiss the suit,

having found that no consensus ad idem was reached by the parties with regards to the meeting of 22nd day of July, 2013, same being the foundation of the suit?
d) Whether the Learned Trial judge erred in law when he held that because the Appellant allegedly failed to dispute the correspondence of 10th January, 2104[sic] {Exhibit A4}, the said correspondence captured the agreement reached at the meeting of 12th December, 2013 and hence there was indeed an agreement reached between the parties on the 12th day of December, 2014 as contained in Exhibit A4?
e) Whether the Lower Court erred in law and misconstrued the facts of the suit when he held that the Appellants did not inform the Respondents when the facility elapsed and also when the Central Bank Examiners left the Appellant’s office?

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant’s submission is that there was no consensus ad idem reached as there was no precise offer and an unconditional acceptance vide ODUTOLA vs. PAPERSACK (NIG) LTD (2006) 18 NWLR (PT. 1012) 470 at 492, ORIENT BANK NIG PLC vs. BILANTE INT’L LTD (1997) 8 NWLR (PT 515) 1 at 76 and BILANTE INT’L LTD vs. NDIC (2011) 15 NWLR (PT 1270) 407 at 431.

It was contended that the lower Court having found that there was no consensus ad idem at the meeting of 22nd July, 2013 ought to have dismissed the suit as there was no agreement to be enforced by specific performance. The lower Court, it was maintained, was wrong to hold that the lack of consensus prompted the meeting of 12th December, 2013, since the entire foundation of the suit was the meeting of 22nd July, 2013 and if the said meeting did not reach any consensus as found by the lower Court, nothing further could be built on it. The cases of SKENCONSULT NIG LTD vs. UKEY (1981) 1 SC 6 at 9, MACFOY vs. UAC LTD (1962) AC 152 and ASHCO NIG LTD vs. WARD AND GREEN (2009) LPELR-8725 (CA) were referred to.

It was asserted that in the absence of an agreement, the moneys paid to the Appellant was towards the liquidation of the Respondents total indebtedness of N5.5 Billion. The foundation of the Respondents’ claim as formulated was said to be based on the agreements reached on July 22, 2013 and December 12, 2013 and that the lower Court was wrong to have based its judgment solely on the alleged

agreement reached at the meeting of December 12, 2013 as the Respondents’ claim was not in the alternative with regards to the two meetings. A Court, it was submitted, cannot deviate from the case made by each party in the pleadings. The case of FAGBENRO vs. AROBADI (2006) 7 NWLR (PT 978) 172 was relied upon.

It is the further contention of the Appellant that the lower Court erred in law when it held that the Appellant having failed to dispute the correspondence of 10th January, 2014, meant that the said correspondence captured the agreement reached at the meeting of 12th December, 2013. It was asserted that the Appellant’s reply to the said letter of 10th January, 2014, which was dated February 7, 2014, Exhibit A5, cannot be said to have admitted the correspondence of 10th January, 2014. The Respondents, it was opined, did not react to the Appellant’s letter of February 7, 2014 and that it amounted to speculation for the lower Court to hold that the request for waiver/concessionary payment referred to in the letter of February 7, 2014 was strange when there was no evidence before it that Honeywell Group Ltd reacted to, disputed and/or

responded to the issue of request for waiver. A Court, it was posited, bases its decision on legal evidence and not on speculation or suspicion vide NWANKWO vs. AGWO (2016) LPELR-40808 (CA). The Appellant insisted that there was therefore no consensus ad idem between the parties in the correspondences they exchanged (Exhibits A4 and Exhibit A5) and that the lower Court erred in law when it held that a fresh agreement was reached at the meeting of 12th December, 2013 as there was no unequivocal offer and unconditional acceptance of the offer. It was opined on the authority of RABILU vs. USMAN (2016) LPELR-40233 (CA) that there cannot be mental assent as mere silence will not constitute sufficient legal acceptance.

The Appellant argues that the lower Court misconstrued the facts of the case when it held that the Appellants did not inform the Respondents when the facility elapsed, and also when the Central Bank Examiners left the Appellant’s office. It was stated that since the lower Court found that there was no clear agreement at the meeting of 22nd July, 2013, the issue as to when the concession will elapse and/or the exit of Central Bank Examiners

from the Appellant’s office became moot and academic. The Appellant further asserted that in the absence of an enforceable contract, there was no obligation to inform the Respondents that the facility had elapsed, since the Respondents were still indebted to the Appellant. The Appellant stated that Dr. Oba Otudeko, the Chairman of Honeywell Group Limited is an experienced banker who was fully aware of the workings of Central Bank Examiners and the fact that they cannot stay in the bank for more than a few weeks, definitely not up to the six months it took for the concessionary amount to be paid.

SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
The Respondents submit that the finding of the lower Court that the Appellant did not inform the Respondents of the exit of the Central Bank Examiners from the Appellant’s office has not been appealed against. It was stated that there is no evidence prior to Exhibit A4 stating that the agreement reached had elapsed, or that the Central Bank Examiners had left the bank before the concessionary amount was fully paid. The Respondents maintain that the Appellant misrepresents the decision of the lower

Court in its submission that the lower Court held that there was no agreement reached at the meeting of 22nd July 2013. The lower Court, it was asserted, held that an agreement was reached at the said meeting of 22nd July, 2013 for the sum of N3.5 Billion to be paid but that the half yearly payment of N3Billion was not part of the agreement. The Appellant, it was contended set out the terms of the agreement in its letter, Exhibit A1, and can therefore not argue on appeal that there was no agreement as a party is to be consistent in stating his case vide JADESIMI vs. OKOTIE-EBOH (1986) 1 NWLR (PT 16) 264 at 274, AIYEOLA vs. PEDRO (2014) 13 NWLR (PT 1424) 409 at 447 and AJIDE vs. KELANI (1985) 3 NWLR (PT. 12) 248 at 269.

It is the further submission of the Respondents that the finding of the lower Court that the Appellant did not notify the Respondents of the time of the exit of the Central Bank Examiners knocked the bottom out of the Appellant’s case and defence, which is that the payment was not made before the exit of the Central Bank Examiners. It was posited that there is no evidence that prior to the completion of the payment of the N3.5Billion,

that the Appellant notified the Respondents that the Central Bank Examiners had left the bank or that the offer had elapsed. The Appellant, it was posited, failed to discharge the burden of proving by true, valid and credible evidence that Dr. Oba Otudeko had personal knowledge of when the Central Bank Examiners left the bank. The cases of ONWUKA vs. EDIALA (1989) 1 NWLR (PT 96) 182 at 208-209 and MOGAJI vs. ODOFIN (1978) 4 SC 91 at 93 were cited in support.

The Respondent’s contend that the elements of a valid contract precedes the performance of the contract and the fact that there had been part performance by payment of the agreed N500 Million on the stipulated date shows that prior to the part performance, there was already a contract in existence as a result of which the lower Court held that payment of the balance in instalments as proposed in Exhibit A was not part of the agreement. It was contended that if the subsequent payments were not made within the terms agreed, then the Appellant’s remedy would be for breach of contract and not the contention that there was no contract ab initio. The cases of NWAOLISAH vs. NWABUFOH (2011) 14 NWLR

(PT 1268) 600, BAN NELSON NIGERIA LTD vs. MORO LOCAL GOVT KWARA STATE (2001) 8 NWLR (PT 1037) 623 at 633, FAKOYA vs. ST. PAUL’S CHURCH SHAGAMU (1966) 1 ALL NLR 714 0r LPELR-25322 (SC) at 7-10, EKPO vs. GTB PLC (2018) LPELR-46079 (CA) 1 at 27 and ADENIYI vs. GOVERNING COUNCIL OF YABATECH (1993) 6 NWLR (PT 300) 426 at 461 were called in aid. It was opined that even if there was a breach of the agreement, the fact the Appellant continued to collect money from the Respondents and did not give reasonable notice of the breach, connived to deprive the Appellant of any right to lay claim to such a breach which they had waived by not giving reasonable notice. The cases ofBEKEDEREMO vs. COLGATE-PALMOLIVE NIG LTD (1976) 6 SC 35 and NBCI vs. INTEGRATED GAS (NIG) LTD (2005) 4 NWLR (PT 916) 617 were referred to.

The Respondents’ further submission is that the lower Court rightly held that the agreement reached in Exhibit A1 was not subject to any internal approval of the Appellant and that the issue of concessionary payment was settled at the meeting of 22nd July, 2013. It was posited that it was unreasonable and strange that it was after discussions were

held and performance fully completed, that waiver for agreement was allegedly refused by the Appellant’s Board. It was conclusively submitted, relying on the cases of OMOKEY vs. ANTIGHA (2014) LPELR 24004 (CA) and EMEKA OFFOR vs. LEADERS & COMPANY LTD (2006) LPELR-6117 (CA) that when a party compromises and agrees to collect a lesser sum in full and final satisfaction of the entire debt owed to him, and the other party acts on the same by paying or commencing payment of the lesser sum, the first party will not be allowed to subsequently maintain an action for the original debt.

APPELLANT’S REPLY ON LAW
In the Reply Brief, the Appellant submits that it appealed against the findings made by the lower Court in respect of the exit date of the Central Bank Examiners. It was stated that the Appellant’s case is that on account of the failure of the parties to reach a consensus ad idem as to the mode of payment of the concessionary sum, there was no agreement. It was opined that in order for there to be part performance, there must first be an agreement and for there to be an agreement the parties must be ad idem on all the terms of the

agreement vide SONA BREW. PLC vs. PETERS (2005) 1 NWLR (PT. 908) 478 at 488. It was asserted that a party who wants the Court to order specific performance of a contract must comply with the terms of the contract for specific performance to avail him. The cases of LSDPC vs. NL & SF LTD (1992) 5 NWLR (PT. 244) 653 at 671 and NIGER CLASSIC INVESTMENT LTD vs. UACN PROPERTY DEVELOPMENT COMPANY PLC (no reference supplied) were referred to.

RESOLUTION OF ISSUE NUMBERS THREE, FOUR AND FIVE
The main thrust of the disceptation under these issues is whether there was an enforceable agreement reached between the Appellant and Honeywell Group Limited. The contestation under these issues strikes at the very root of the reliefs sought by the Respondents and which was granted by the lower Court. This is so because the reliefs claimed are rooted in the existence of an enforceable contract. Where there is no enforceable contract, then the action must willy-nilly fail. It is therefore no surprise that while the Appellant argues that there is no enforceable contract, the Respondents contend the contrary.
Now, in order for there to be a valid contract there must

be the consensus ad idem, the meeting of the minds of the parties. Where there is an issue as to whether there was such a meeting of the minds, the problem is resolved by breaking down the agreement between the parties into offer and acceptance. The offer is the statement made by one party, which if unequivocally accepted without qualification by the other party, will result in a valid contract. SeeAKINYEMI vs. ODU’A INVESTMENT CO. LTD (2012) LPELR (8270) 1 at 48, ORIENT BANK vs. BILANTE INTERNATIONAL LTD (1997) 8 NWLR (PT 515) 37 at 78 and BILANTE INTERNATIONAL LTD vs. NDIC (2011) LPELR-781 (SC).
The negotiations and discussions between the Appellant and Honeywell Group Limited were oral after which they exchanged correspondences as to the understandings reached and agreed upon. It is from these correspondences that it can ascertained whether there was the consensus ad idem on the basis of which it can be said that there exists a valid and enforceable contract. The lower Court correctly approached the resolution of the matter when it stated at page 1122 of Volume II of the Records that the suit turns on interpretation of documents. Since it is

settled that an appellate Court is in the same position as the Court of trial when it comes to evaluation of documentary evidence:IWUOHA vs. NIPOST (supra) and GONZEE (NIG) LTD vs. NERDC (supra); of abiding interest will be whether the lower Court correctly evaluated the documentary evidence in arriving at the decision that there was a valid agreement which it enforced by granting the reliefs claimed by the Respondents.
The relevant documents at the core of this matter are the letters written by Honeywell Group Limited dated 22nd July, 2013 which was admitted in evidence as Exhibit A and reproduced at page 32 of the Records, and the Honeywell Group Limited letter dated 10th January, 2014, which was admitted in evidence as Exhibit A4 and is reproduced at pages 61-62 of Volume I of the Records. On the flip side are the Appellant’s letter dated 22nd July, 2013, which was admitted in evidence as Exhibit A1 and reproduced at page 33 of Volume I of the Records, and the Appellant’s letter dated 7th February, 2014, admitted in evidence as Exhibit A5 and reproduced at page 49 of the Records.
Before I closely examine these documents, I would once

again, on account of its idoneity, revisit the restatement of the facts of this matter as set out in the lead judgment of Odili, JSC in ECOBANK NIG LTD vs. ANCHORAGE LEISURES LIMITED (supra). My Lord stated:
“Respondents’ grouse in presenting the suit in this appeal is that Appellant herein allegedly failed and/or neglected to adhere to an ‘in-principle’ agreement reached between a certain Honeywell Group Limited (not a party in the suit of this appeal) and the appellant herein as shown in the letters dated 22nd July, 2013. (compiled at pages 31 and 32 of the record of appeal, Vol. 1).
As shown by the letters, respondents herein were indebted to the appellant bank over sums in excess of N5.5 Billion following which Honeywell Group Limited proposed to the appellant bank that the latter grant to it concessions on the total indebtedness. Appellant indeed, gave the concession as sought by Honeywell Group Limited that out of the entire N5.5 Billion outstanding, the negotiating Honeywell Group Limited pay a concessionary sum of N3.5 Billion on terms and conditions mutually agreed at the meeting of 22nd July, 2013.
Further agreed at

the 22nd July, 2013 meeting was that the negotiating third party, Honeywell Group Limited pay an immediate sum of N500,000,000.00 whilst the remainder N3 Billion is paid in bullet point form and before the departure of the then visiting CBN examiners at the appellants bank, in August, 2013. It is necessary to add that the then visiting CBN examiners were examining the appellants book on its exposures chief amongst which was the obligations subject of the 22nd July, 2013 ‘in-principle’ agreement.
In a letter dated 22nd July, 2013, the negotiating third party, Honeywell Group Limited proposed fresh terms so as to stagger the repayment of the N3 Billion balance contrary to the agreement earlier reached. The instructive paragraph in the letter by Honeywell Group Limited dated 22nd July, 2013 and compiled at page 31 of the record of appeal Vol.1 reads thus:-
‘As part of the verbal agreement reached at the meeting, we shall immediately pay the sum of N500 Million towards the facility. We propose that the balance of N3 Billion be paid in three equal half yearly instalments.’ (Emphasis supplied).
It is clear that the payment of

N500 Million was as agreed in the meeting of 22nd July, 2013 while the proposed staggered repayments constitutes a fresh proposal outside the agreement of 22nd July, 2013.
In confirmation of the above and upon receipt of the fresh proposal, appellant herein immediately caused to be issued; a letter dated same 22nd July, 2013 (page 32 of the record of appeal, Vol. 1) rejecting the new proposal and demanding a reversion to the agreement of 22nd July, 2013 in the following words:
‘Please note that the agreement was for a full and final payment of N3.5 Billion to be paid immediately by N500 Million on Monday July 22, 2013 and the balance to be paid immediately thereafter before the CBN examiners leave the Bank. Kindly therefore revert in line with the agreement.’
There is no record of Honeywell Group Limited’s immediate and/or prompt reaction to the above reproduced assertions.”
It is against this backdrop that I would now consider whether the lower Court was correct in its decision that there is a valid contract, bearing in mind that for there to be a valid contract there has to be the consensus ad idem.

In Exhibit A, Honeywell Group Ltd restated its understanding of the verbal agreement reached as follows:
“Following from the meeting of July 22, 2013, we confirm our agreement to pay the sum of N3.5Billion (Three Billion, Five Hundred Million Naira Only) as full and final settlement of our indebtedness to your bank.
As part of the verbal agreement reached at the meeting, we shall immediately pay the sum of N500million towards the facilities. We propose that the balance of N3Billion be paid in three equal half yearly installments [sic].
Based on the above, we look forward to receiving your letter confirming the discussions above and acknowledging receipt of the N500million.”
In construction of documents, the duty on the Court is to interpret the same, giving the words used their plain, simple and ordinary grammatical meeting. It seems to me that the ordinary meaning of the words employed in Exhibit A above disclose an integral agreement, made subject to the fulfilment of the certain terms. Immanent in the said Exhibit A is that the agreement involves three integral components, id est, the payment of the agreed sum of N3.5 Billion in

full and final settlement of the amount owed by immediately paying the sum of N500Million. That is where the consensus seems to have ended because what follows next is a proposal to pay the balance of N3Billion in three equal half yearly instalments. The use of the word “propose“ clearly shows that Exhibit A does not contain any consensus on the payment of the balance of N3Billion. So to that extent, it is inchoate and does not constitute a valid contract since it did not adequately represent the verbal agreement reached.
The Appellant wrote Exhibit A1 in reply to Exhibit A. It therein stated, inter alia:
“Please note that the agreement was for a full and final payment of N3.5Billion to be part paid immediately by N500 Million on Monday July 22, 2013 and the balance to be paid immediately thereafter before the CBN examiners leave the Bank.
Kindly therefore revert in line with the agreement.”
The above pericope from Exhibit A1 lays to rest any doubt as to whether there was a consensus ad idem in Exhibit A. Honeywell Group Limited having made the proposal in Exhibit A which the Appellant did not accept, did not respond

to Exhibit A1. So it cannot be definitely said whether it accepted that Exhibit A1 adequately represented the verbal agreement and that it gave its assent to the contents of Exhibit A1. This is so because mere mental assent or mere silence will on no account constitute sufficient legal acceptance: ORIENT BANK vs. BILANTE INT’L LTD (supra) at 100 and RABILU vs. USMAN (supra). So to hold that the failure of Honeywell Group Ltd to respond to Exhibit A1 is mental assent may amount to guessing and speculating that its silence is consent. So it still blows in the wind whether Exhibit A1 constitutes the consensus ad idem necessary for there to be a valid contract.
Be that as it may, it seems to me that Exhibit A1 equally discloses an agreement made subject to the fulfilment of certain terms and conditions. Inherent in the said Exhibit A1 is that the agreement is for the payment of N3.5Billion in full and final settlement of the debt owed, with N500Million to be paid immediately and the balance to be paid “immediately thereafter.” In the submissions of learned counsel, the phrase “immediately thereafter” seems to have fallen through

the cracks and they have founded their argument on the agreement being that the balance is to be paid before the CBN Examiners leave the bank; on account of which they have argued on whether the Appellant informed the Respondents when the CBN Examiners left the bank or whether the Chairman of Honeywell Group Limited, as an experienced banker had knowledge of when the Examiners left. It is however my deferential view that the agreement on when the balance is to be paid as stated in Exhibit A1 is that after initial sum of N500Million is paid, the balance is to be paid “immediately thereafter”. This phrase is key in this matter. Accordingly, the component terms and conditions on which the verbal agreement is anchored are the agreement for payment of N3.5 Billion by immediate payment of N500Million and the payment of the balance immediately thereafter. Let me restate that where an agreement is made subject to the fulfilment of certain specific terms and conditions, the agreement is not formed and not binding unless and until those terms and conditions are complied with or fulfilled. See BEST (NIGERIA) LTD vs. BLACKWOOD HODGE (NIG) LTD (2011) LPELR

(776) 1 at 38, TSOKWA OIL MARKETING CO. vs. BON LTD (2002) 11 NWLR (PT 777) 163 and NIGER CLASSIC INVESTMENT LTD vs. UACN PROPERTY DEVELOMENT CO. PLC (2016) LPELR (41426) 1 at 20. So, the component and constituent parts of Exhibit A1 embodying the specific terms and conditions, as conveyed by the Appellant, have to be compiled with and fulfilled for there to be a valid and enforceable agreement.
It would appear that the term and condition on the payment of the balance which was an integral part of the discussions, in order for there to be the requisite consensus ad idem could not be agreed upon, such that the negotiations toward an agreement made on 22nd July, 2013 remained inchoate. However, this notwithstanding, Honeywell Group Ltd made part payments towards paying the balance of N3Billion. These part payments, the Respondents have argued amount to part performance. The question that immediately jumps at me on this submission is part performance of what agreement? The inchoate agreement? When it is remembered that the Respondents were indebted to the Appellant, which debt they were obligated to repay, whether there was a negotiated settled amount or not,

I am unable to see the payments made as part performance as there was no agreement to be performed or being partly performed since the necessary consensus ad idem was non-existent.
Now, back to the phrase “immediately thereafter.” The words employed in this phrase are univocal. The phrase accordingly has to be given its simple, plain and ordinary grammatical meaning. The phrase consists of two adverbs, videlicet, immediately and thereafter. The online English Dictionary, Dictionary LLC. Com defines the adverb “immediately” as meaning:
“1. without lapse of time; without delay; instantly; at once
2. with no object or space intervening.”
The Black’s Law Dictionary, 8th Edition defines the adjective “immediate” from which the adverb “immediately“ is derived to mean: “occurring without delay”. According to Merriam-Webster Online Dictionary, “immediately” means “without interval of time: STRAIGHTAWAY”. The adverb “thereafter” is defined by the online English Dictionary, Dictionary LLC. Com to mean: “after that in time or

sequence; afterward.” The Black’s Law Dictionary, 8th Edition defines “thereafter“ to mean: “Afterward; later”. For Merriam-Webster Online Dictionary, “thereafter” means “after that”.
Given the ordinary meaning of the phrase employed, the specific term and condition innate in the agreement on the payment of N3.5billion in full and final settlement of the indebtedness as set out in Exhibit A1 is that a part payment of N500Million is to be made immediately on the said date of 22nd July, 2013, while the balance of N3Billion is to be paid: without delay, without interval of time, straightaway at once after that. The specific term and condition would not seem to admit of payment of the balance in instalments over a staggered period of time. The specific term and condition was not complied with as the balance was not paid without tarriance and was paid, not en bloc, but in instalments over a six month period! I therefore make bold to hold that the integral construction of Exhibits A and A1 makes it abundantly clear that there was no consensus ad idem reached and there was therefore no valid agreement

arrived at based on the meeting of 22nd July 2013.
Let me iterate that the phrase “immediately thereafter“ as employed in Exhibit A1 is neither idle nor floccinaucinihilipilification. The emphasis by learned counsel on whether the Respondents had knowledge of the exit date of the Central Bank Examiners would only have become a factor if the balance of the agreed amount had been paid “immediately thereafter” as stipulated. It was not. The awareness vel non of the exit date of the Central Bank Examiners therefore became of no moment. In splice, there was no valid and enforceable agreement reached on 22nd July, 2013 as the requisite consensus ad idem and fulfilment of the specific terms and conditions necessary to have a valid agreement were absent.
Turning to Exhibits A4 and A5, it is evident that the premises on which the said correspondences are predicated is the existence of a valid and subsisting agreement reached on 22nd July, 2013, whereat it was agreed that the compromise and concessionary sum of N3.5Billion is to be paid in full and final settlement of the indebtedness. Having held that there is no such valid agreement

reached on 22nd July, 2013, the foundation on which any subsequent agreement can be anchored thereon based on the meeting of 12th December, 2013 which is the basis on which Exhibits A4 and A5 were written is non-existent. The Latinism is ex nihilo, nihil fit, out of nothing, nothing comes: MANAGEMENT ENTERPRISES LTD vs. OTUSANYA (1987) LPELR (1834) 1 at 74, IN RE: OTUEDON (1995) LPELR (1506) 1 at 16 and NZOM vs. JINADU (1987) LPELR (2143) 1 at 44. In a summation, these issues are resolved against the Respondents. The lower Court did not correctly resolve the issues relating to the meetings of 22nd July, 2013 and 22nd December, 2013 and was wrong to hold that there was a valid contract which it made an order for its enforcement by granting the reliefs claimed by the Respondents.

ISSUE NUMBER SIX
f) Whether from the peculiar facts and circumstances of the case, the Lower Court erred in law when he unwittingly affirmed the decision of the Bankers’ Committee and held that the said decision is in line with his decision?

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The quiddity of the Appellant’s submission is that the lower Court

unwittingly affirmed the decision of the Banker’s Committee as being in line with its decision, when in actual sense the said decision of the Bankers Committee is at variance with the decision of the lower Court.

SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
The conspectus of the Respondents’ submission is that the lower Court had decided the merits of the action before it made the comments on the decision of the Banker’s Committee and that the said comments did not affect the decision of the lower Court. It was stated that the purpose of an appeal is for the appellate Court to review the decision of a lower Court to see if it is not correct vide COCA-COLA (NIG) LTD vs. AKINSANYA (2013) 18 NWLR (PT. 1386) 255 at 331. It was asserted that even if the lower Court was wrong in comparing its findings with that of the Banker’s Committee, it was not a basis on which the decision of the lower Court can be set aside; since the said comparison did not play any part in the decision making by the lower Court. It was conclusively opined, that it is not every error in a Court’s decision that will lead to the decision being set aside.

The case of ABEGUNDE vs. ONDO STATE HOUSE OF ASSEMBLY (2014) LPELR-23683 (CA) 1 at 80 was cited in support.

APPELLANT’S REPLY ON LAW
The Appellant argues in the Reply Brief that the Respondents’ argument should be discountenanced for being misplaced and unfounded. It was maintained that an appeal relating to the findings of a lower Court as embodied in the ground of appeal cannot be academic.

RESOLUTION OF ISSUE NUMBER SIX
The Appellant’s grouch under this issue is the statement made by the lower Court that the decision of the Banker’s Committee Court conforms to its findings. It is settled law that the part of the judgment which constitutes the decision of the Court and which is appealable is the ratio decidendi. It is the principle decided that is the important thing and which constitutes the ratio decidendi that can be appealed against. See AIC LTD vs. NNPC (2005) LPELR (6) 1 at 24-25, OLEKSANDR vs. LONESTAR DRILLING CO LTD (2015) LPELR (24614) 1 at 22-23 and SAIPEM CONTRACTING NIG LTD vs. FIRS (2018) LPELR-45118 (CA).
The dictum of the lower Court which the Appellant complains about in this issue is at page

1129 of Volume II of the Records wherein the lower Court stated:
“Issue 4 does not arise any more. Having decided the merits, the decision of the Banker’s Committee is not relevant save to say that the decision conforms with my findings.”
It cannot be confuted that the above excerpt does not constitute the ratio decidendi of the lower Court. It does not represent the principle that was decided in the matter. Indeed, the lower Court prefaced its comment by stating that the issue, which interrogates, whether the decision of the Banker’s Committee laid to rest the dispute between the parties, which was issue number four distilled by the Appellant at the lower Court (see page 1097 of Volume II of the Records); did not arise any more, showing that it was not deciding any principle raised by the issue, since it had already decided the matter on the merits. I agree with the Respondents that whether the lower Court stated that the said decision conforms to the findings of the Banker’s Committee is a moot point since the lower Court had independently considered the merits of the matter and decided the same. The issue of an

unwitting confirmation of the decision of the Banker’s Committee therefore does not arise. This issue is resolved against the Appellant.

CONCLUSION
The harbour looms into sight and as I navigate the vessel of this judgment to berth at the quays, the concatenation of the foregoing is that even if I had not held that the Respondents did not have the locus standi to maintain the action, I would still have, after having considered the appeal on the merits, allowed the appeal and set aside the decision of the lower Court and made an order dismissing the Respondents action in its entirety. The want of locus standi which impacts on the jurisdiction of the Court necessarily means that the proper order to make in the circumstances is to strike out the action for want of jurisdiction: OKOYE vs. NCFC (supra), RTEAN vs. NURTW (1992) LPELR (3200) 1 at 15 and DANGANA vs. USMAN (2012) LPELR (25012) 1 at 35-36. In a summation, the appeal is meritorious and it is hereby allowed. The decision of the lower Court delivered on 31st May, 2019 is hereby set aside. In its stead, an order is hereby made striking out the Respondents’ action in

SUIT NO. FHC/L/CS/1219/2015: ANCHORAGE LEISURES LTD & ORS VS. ECOBANK NIGERIA LIMITED for want of locus standi and jurisdiction. The parties shall bear their respective costs of this appeal.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the exhaustive judgment prepared by my learned brother, Ugochukwu Anthony Ogakwu, J.C.A.

EBIOWEI TOBI, J.C.A.: I have been afforded in advance the privilege of reading the draft leading judgment of my learned brother, Ugochukwu Anthony Ogakwu, JCA, and I am in agreement with my Lord’s analysis and the resolution of the respective issues crafted by counsel representing their clients, for determination by this Honourable Court. My Lord has done justice in the well articulated and elucidated judgment and left no stone unturned and as such, I cannot see my way clear to hold contrary. I also abide by the consequential order contained therein.

Appearances:

B. Ogunba, SAN, with him, O. A. Divine, Esq. For Appellant(s)

Chief Wole Olanipekun (SAN), Bode Olanipekun (SAN), with them, Ms. Faith Adarighofua For Respondent(s)