Mainasara V. Fbn (2022)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. 

The appellant herein, a businessman, was a customer of First Bank of Nig. Plc (the respondent herein), where he maintained a current account No.7862 with its Gusau Branch, Zamfara State. He contended that between 1982-1990 he made various lodgements worth “billions of naira” into the said account and the respondent refused or neglected to issue him with statements of account covering the periods aforesaid despite repeated demands. He also contended that statements issued to him covering the period 1991-1994 revealed serious fraud and misrepresentation by the respondent, which contributed to the downfall of his business.

​He instituted an action against the respondent at the High Court of Sokoto State, Gusau Division vide a Writ of Summons and Statement of Claim, which can be found at pages 1-2 and 8-9 of the record. The processes are undated. Pursuant to leave granted by the trial Court, he filed an Amended Writ of Summons and Amended Statement of Claim at pages 81-84 of the record. By paragraph 7 of the Amended Statement of claim, he sought the following reliefs against the respondent thus:

“7(a) A declaration that the Plaintiff, being the holder of Account No.7862 with the defendant, is entitled to his statement of account in the period stated above.

(b) An order directing the defendant to issue the plaintiff with the statement of account No. 7862 for the period covering 1982-1990.

(c) N300,000,000.00 (Three Hundred Million Naira) being damages for fraud and refusal to issue the Plaintiff with his statement of account as and when due.”

The respondent filed an Amended Statement of Defence pursuant to order of the trial Court made on 16th December 1997. It denied the appellant’s claim. It contended that all lodgments made into the appellant’s account were correctly recorded. It denied failing or refusing to issue statements of account to the appellant and denied the allegation of fraud and negligence.

At the trial, three witnesses testified for the appellant while the defence called two witnesses. In a considered judgment delivered on 10th November 1999, the learned trial Judge entered judgment in favour of the appellant as follows:

“Judgment is hereby entered in favour of the plaintiff as per subparagraph (c) of the said paragraph on general damages. The Court has considered the amount involved, the period of their relationship as well as the deliberate refusal of the defendant to issue the plaintiff with statement of account on this it is hereby ordered that the plaintiff is entitled (sic) for this defendant (sic) the sum of N500,000,000.00 as general damages plus N600.00 and the cost of this case fixed at N50,000.00”

​Being dissatisfied with the judgment, the respondent appealed to the Court below. He formulated 5 issues for determination, to wit:

“1. Whether the plaintiff has sufficiently proved the allegation of fraud given that this amounts to a crime and the standard of proof is beyond reasonable doubt.

2. Whether the finding by the learned trial Judge that the Plaintiff had deposited the sum of N3,203 but only the sum of N2,603 was recorded leaving unrecorded the sum of N600 is supported by legal evidence before the Court.
3. Whether the finding of the learned trial Judge that the defendant had failed or refused to provide the plaintiff with his statements of account and therefore acted negligently is supported by the evidence before the Court.
4. Whether the judgment is not against the weight of evidence.
5. Whether the award of damages of N500,000,000.00 in the circumstances is not manifestly excessive”

The Court, in a considered judgment found the appeal to be meritorious. The appeal was allowed. The judgment of Mika’ilu, J. was set aside and the appellant’s suit No. SS/95/96 was dismissed.

The appellant is dissatisfied with the judgment and has appealed to this Court vide his Amended Notice of Appeal dated 5/9/2021 and deemed filed on 20/9/2021. It contains 5 Grounds of Appeal. The respondent filed a Notice of Preliminary Objection on 16/1/2021 challenging the competence of the appeal. The parties duly exchanged their respective briefs of argument.

At the hearing of the appeal on 20th September 2021, A.S. Abdulkadir Esq. adopted and relied on the Appellant’s Amended Brief of Argument and Reply Brief both filed on 13/9/2021 and deemed filed on 20/9/2021, in urging the Court to allow the appeal.

​Dr. K.U.K. Ekwueme adopted and relied on the Respondent’s brief filed on 16/9/2021 and deemed filed on 20/9/2021 in urging the Court to uphold its preliminary objection argued therein and strike out the appeal for incompetence, or alternatively to dismiss it on the merits.

The respondent having raised a preliminary objection to the competence of the appeal, it is prudent and accords with the practice of this Court to consider and determine same before delving into the merit of the appeal. The rationale for this approach, no doubt, is that in the event that the appeal is fundamentally defective, the jurisdiction of this Court to hear it would be ousted. A preliminary objection, if successfully raised has the effect of terminating the appeal in limine See: Aremo vs Adekanye (2004) 13 NWLR (Pt. 891) 572, Zenith Bank Plc vs John & Ors. (2015) 7 NWLR (Pt. 1458) 393; SPDC vs Amadi (2011) 14 NWLR (Pt.1266) 157 @ 192.

​The grounds for the objection are:

1. That the undated Writ of Summons and Statement of Claim which originated Suit No. SS/95/96 that culminated in this appeal were not signed by a legal practitioner.
2. That the grounds of appeal are incompetent for being of mixed law and facts and for which no leave was obtained.
3. That Grounds 1, 2 and 5 are incompetent because they offend Order 8 Rule 2(4) of the Supreme Court Rules 1985 (as amended).

In support of the first ground of objection, learned counsel for the respondent relied on the decisions of this Court in Okafor vs Nweke (2007) 10 NWLR (Pt. 1043) 521 @ 531 B-E: SPDC vs Sam Royal (Nig) Ltd. (2016) LPELR-40062 (SC) 17-22 C-B, to the effect that a Writ of Summons signed in name of a law firm, Adamu Umar & Co. in the instant case, is incompetent.

In further support of the said ground, he submitted that an unsigned Writ of Summons is void and cannot be cured by amendment. He submitted that it is an issue that affects the competence of Court to entertain the suit. In other words, it goes to the root of the Court’s jurisdiction. He referred to Kida Vs Ogunmola (2006) LPELR-1690 (SC) 15 E-G; Nzom & Anor. vs Jinadu (1987) 2 SC 205. He argued that a suit initiated by an unsigned Writ of Summons is not initiated by due process of law and the Court cannot exercise jurisdiction therein. See: Madukolu Vs Nkemdilim (1962) ANLR 581 @ 589-590; Lado vs CPC (2011) LPELR-8254 (SC) 25-26 F-B.

​In support of the second ground of objection, it is contended that all the grounds of appeal are of mixed law and fact and that by virtue of Section 233 (2) of the 1999 Constitution, as amended, the appellant was required to seek and obtain leave of this Court or the Court below before filing the appeal. He submitted that Grounds 1, 2, 3 and 4 require the Court to evaluate evidence and are therefore not grounds of law alone. He relied on B.A.S.F Nigeria Vs Faith Enterprises (2010) 4 NWLR (Pt.1183) 104 @ 133 D-E.

With regard to Ground 5, he submitted that an omnibus ground of appeal that complains that the judgment is against the weight of evidence is a ground of a fact requiring leave. He referred to Nwadike Vs Ibekwe (1987) 4 NWLR (Pt. 67) 718 @ 743 H & 744 A: Teriba Vs Adeyemo (2010) 11 NWLR (Pt.1211) 243 @ 267 H. Relying on Nsirim Vs Nsirim (1990) 3 NWLR (Pt.138) 285 @ 296, he submitted that where all the grounds of appeal are incompetent, the appeal is a nullity.

​With regard to the third ground of objection, it is learned counsel’s contention that Grounds 1 and 2 of the Notice of Appeal offend Order 8 Rule 2(4) of the rules of this Court for being vague, speculative an ambiguous, while Ground 5, which complains of error in law, failed to state clearly the particulars of the said error. He referred to Anadi vs Okoli (1977) 11 NSCC 117 @ 120.

He also contended that Ground 2 is deemed abandoned because issue 2 distilled therefrom does not flow from the said ground, He referred to PDP Vs INEC (2014) LPELR- 23808 (SC) 23 D-E.

In reply, learned counsel for the appellant argued that the respondent’s objection regarding the issuance of the Writ of Summons in the name of a law firm, failed to take into account the provisions of Order 5 Rule 1(1), 12 and 15 of the Sokoto State High Court (Civil Procedure) Rules, 1987, which were the extant rules at the time the writ was issued and which vests the responsibility for the issuance of a writ in the Registrar of the Court. He referred to Broad Bank Nig. Ltd. Vs ALH. OLAYIWOLA & SONS LTD (2005) ALL FWLR (Pt. 251) 236 @ 262. He argued that neither a party nor his legal practitioner has any role to play in the issuance of a Writ of Summons. He submitted that once the Registrar has signed the process it is sufficient compliance with the Rules.

​Learned counsel urged us to be persuaded by decisions of the Court of Appeal wherein similar provisions to Order 5 Rule 1 (1) and 12 (1) and 15 of the Sokoto State High Court (Civil Procedure) Rules were interpreted. He referred to an unreported decision: Mr. Johnson Ashaolu Vs Mr. Ibietin Ang Ofoir & Anor, in Appeal No. CA/PH/374/2014, delivered on 5/5/2017; Bello vs Gov. Gombe State (2016) 8 NWLR (Pt. 1514) 219 @ 250; David vs Jolayemi (2011) 11 NWLR (Pt. 1258) 320 @ 356 B-F.

He conceded that the signature of the Registrar does not appear on the Writ of Summons but argued that the plaintiff, having paid the necessary fees, has no further responsibility regarding the issuance of the writ. He referred to: Ogbuanyinya Vs Okudo (No.2) (1990) 4 NWLR (Pt. 146) 551.

With regard to the competence of the grounds of appeal, he argued that Ground 1 alleges an error of law based on undisputed facts and is therefore a ground of law. He referred to A.C.B Plc Vs Obmiami Brick & Stone (Nig) Ltd (1993) 6 SCNJ (Pt.1) 98; Ajayi Vs Omorogbe (1993) 7 SCNJ 168, On Ground 2, he submitted that where a conclusion could not reasonably have been drawn from facts as found, it raises an issue of law, for which no leave is required. He relied on Gen. Electric Coz Vs Henry Ayoade Akande & Ors. (2010) SC (Pt. iv) 75; Ogbechie & Ors. vs G. Onochie & Ors. (1986) 1 NSCC 443.

He maintains that Grounds 3 and 4 are grounds of law and submits further that the contention that some of the grounds of appeal do not comply with the rules of this Court amounts to a recourse to technicalities, which this Court has moved away from. He urged the Court to dismiss the preliminary objection and determine the appeal on its merits.

In the consideration of the preliminary objection, I propose to deal with the competence or otherwise of the grounds of appeal first. I shall consider the other grounds thereafter should the need arise.

The Notice and Grounds of Appeal constitute the originating process in any appeal. Where it is defective, the entire appeal collapses as the appellate Court would be deprived of the necessary jurisdiction to entertain it. See: Olowokere Vs African Newspapers (1993) 5 NWLR (Pt. 295) 583; Thor Ltd. vs F.C.M.B. 2002) 2 SC (Pt.1) 138; Daniel vs INEC (2015) 9 NWLR (Pt. 1463) 113.

It is also well settled that where all the grounds of a Notice of Appeal are incompetent, the Notice of Appeal is incompetent and incurably bad. See Global Transport Oceanico S.A. & Anor. Vs Free Enterprises Nig. Ltd. (2001) SC 154.

On the other hand, a Notice of Appeal can be sustained by a single competent ground of law. See: Erisi vs Idika & Ors. (1987) 3 NWLR (Pt. 66) 503; Daniel Vs INEC (supra); Niger Construction Ltd. vs Okugbeni (1987) 2 NSCC (vol.18) 1258; Opuiyo vs Omoniwari (2007) 16 NWLR (Pt. 1060) 415 @ 413 E.

Section 233 (2) (a) of the 1999 Constitution, as amended, provides thus:

“(2) An appeal shall lie from the decisions of the Court of Appeal to the Supreme Court as of right in the following cases –

(a)Where the ground of appeal involves questions of law alone, decision in any civil or criminal proceedings before the Court of Appeal.” (Emphasis mine)

Sub-paragraphs (b)-(f) set out other instances in which an appellant may appeal as of right. They are not applicable here. Section 233 (3) provides:

“Subject to the provisions of Subsection (2) of this Section, an appeal shall lie from decisions of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or Supreme Court.”

It is the appellant’s contention that all the grounds of appeal are grounds of law alone for which no leave is required. The respondent, on the other hand, contends that all the grounds are of fact or mixed law and facts, for which no leave was sought or obtained,

It has been observed by this Court in many cases, that the distinction between a ground of appeal which is law alone and a ground of appeal which is of mixed law and fact is not as straightforward as it may seem. However, the rule of thumb which the Courts have adopted is that if a ground of appeal reveals a misunderstanding by the lower Court of the law or a misapplication of the law to proved or admitted facts, it would be a question of law. Where the ground questions the evaluation of facts before the application of the law, it is a question of mixed law and facts. See: Ogbechie vs Onochie (1986) 2 NWLR (Pt. 23) 484; Fasuyi & Ors. vs PDP & Ors. (2017) LPELR-43462 (SC) @ 32 B-D per Augie, JSC, (2018) 7 NWLR (Pt.1619) 426; Chrome Air Services Ltd Vs. Fidelity Bank (2017) 12 SC (Pt.111) 57; (2017) LPELR-43470 (SC) @ 19 B-E; Anukam vs Anukam (2008) 5 NWLR (Pt. 1081) 455. It is equally well settled that the mere labeling of a ground of appeal as a ground of law or error in law, does not ipso facto make it so. The grounds of appeal when read along with their particulars must unequivocally point to an error in law. See: Chrome Air Services Ltd. Vs Fidelity Bank (supra); Tilbury Construction Co. Ltd. Vs Sunday Ogunniyi (1988) 2 NWLR (Pt. 74) 64.

For ease of reference, the appellant’s grounds of appeal along with their particulars are reproduced hereunder:

GROUND 1

The learned Justices of the lower Court erred in law and misdirected themselves by erroneously setting aside the judgment or decision of the trial Court and substituting same with dismissal on wrongful ground that the Appellant was notable to prove or establish any of his claim during hearing before the trial Court.

PARTICULARS

(a) The Appellant’s claim against the Respondent at the trial Court was for; (i) a declaratory relief (ii) an order for specific performance and (iii) payment of damages

(b) The Appellant’s 1st prayer was outrightly admitted by the Respondent in her statement of defence thereby requiring no proof.

(c) The Appellant’s prayer being contingent and dependent on the 1st, is also uncontestable but the Respondent’s denial of same was a mere refusal of fact full of speculations.

(d) The Respondent not only failed to establish the issuance of the statement of account and/or receipt of same by or through any documentary evidence but also refused and neglected to throughout the hearing of the case, tender any copy of the alleged issued statement of the account.

(e) The learned trial Court Judge in awarding N500,000.00 as damages to the appellant was very specific and emphatic that same was a general damage against the respondent for her refusal to issue the Appellant with his statement of Account.

GROUND 2

The learned Justices of the lower Court erred in law when their lordships wrongfully abdicated their duty of reviewing the reason upon which the trial Judge based his decision and instead dabbled into re-hearing and/or weighing the credibility of the witnesses evidence without any material or equipment necessary for accomplishing that task particularly at their disposal throughout the hearing of the appeal.

PARTICULARS

(a) The learned trial Judge apart from hearing evidence of the witness on both sides based on their pleadings also had the singular opportunity or privilege of seeing these witnesses and their demeanours in the box during hearing.

(b) The decision of the learned trial Judge was obviously the combined effect and/or result of his consideration and reasoning over the available materials or equipments at the hearing such as the pleaded facts, evidence adduced, documents tendered, the gesture and the demeanours of the witnesses etc.

(c) At the hearing of the Respondent’s appeal by the learned justice’s (sic) of the lower Court the only available materials before their Lordships was the record of proceedings containing second-hand information of what took place at the hearing.

(d) Their Lordships erroneously faulted the due reasoning of the trial Court Judge and as well substituted it with their own view with little or no regard to some salient points or facts upon which he based same.

GROUND 3

The learned justices of the lower Court misdirected themselves having erroneously found that the Appellant failed to have pleaded or given particulars of the fraud and negligence alleged by him against the respondent.

PARTICULARS

(a) The Appellant in his amended statement of claim did not actually give particulars of fraud or negligence as done in his old statement.

(b) The Appellant however upon requisition by the Respondent’s counsel, later filed and submitted to the Respondent the particulars of fraud and misrepresentation before the commencement of hearing thereby killing the error or default (if any) in the amended statement of claim.

(c) The Respondent merely refuted the Appellant’s allegation of fraud against her by pointing out the alleged erasure and/or alterations on the said tellers but failed and neglected to tender her own supposed correct copy or copies of the hoarded statement of account.

(d) Their Lordships in total disregard to the facts contained in the said particulars of fraud and misrepresentation as well as the evidence adduced in support of same erroneously held that the Appellant had failed to either plead and/or prove same thus setting aside the sound judgment of the trial Court which was partly based on same.

GROUND 4

PARTICULARS

The learned justices of the lower Court erred in law by having hastily heard and decided the Respondent’s appeal without receiving the completed Record from the registrar of the trial Court.

(a) A complete Record of proceedings of a trial Court must necessarily contain or go together with the actual documents tendered as Exhibits before the Court during trial or hearing.

(b) According to their Lordships as stated in their decision no original Exhibits or even any documents tendered before the lower at the trial was either sent by the trial Court’s registrar or received and examined by their Lordships before setting aside the trial Court’s judgment in their decision on the appeal.

(c) There is no way their Lordships could have been able to adequately understand and/or perceive some intricacies contained in the evidence before the trial Court, particularly such as erasure and/or alterations on some Exhibits without seeing the actual tendered copy or its original.

GROUND 5

The lower Courts decision is outrightly erroneous and unsustainable as same is clearly against the weight of facts before it and can not as well be supported by the provisions of our laws.

With regard to Ground 1, it is the appellant’s contention that the ground complains of the misapplication of the law to undisputed facts and is therefore an error of law. It was his contention that there was an admission by the respondent that it failed to issue statements of account to the appellant as and when due.

Earlier in this judgment, I reproduced the issues distilled by the appellant for determination at the Court below, Issue 3 questions the finding of the learned trial Judge that the defendant (respondent) failed to provide the plaintiff (appellant) with his statements of account and therefore acted negligently. The respondent herein, who was the appellant at the Court below contended that the finding was not supported by the evidence before the trial Court. In resolving the issue, the Court below held at page 212 of the record:

“I observed that in spite of the fact that the respondent is a very old customer of the bank, he has failed to tender any document in support of his claim that his request for his bank statements was not honoured by the bank.”

​Ground 1 of the Notice of Appeal challenges this finding. It would not therefore be correct to say that the ground of appeal challenges a misapplication of the law to undisputed facts. Particulars (c) and (d) are issues of fact. Grounds 2 and 3, along with their particulars, challenge the evaluation of evidence by the Court below. They are clearly issues of fact or at best, mixed law and facts. Ground 4, which complains that the learned Justices of the Court below utilised an incomplete record in reaching their decision also challenges the evaluation of evidence i.e. whether the lower Court carried out its function correctly in the absence of a complete record. A determination of the issue would depend upon an examination of the record and an appraisal of the findings made by the Court thereon. In other words, whether the findings of fact made by the lower Court could be supported by the record of appeal before it. Again, this in my humble view, raises an issue of fact or at best an issue of mixed law and facts.

​Ground 5, without a doubt, is an omnibus ground of appeal complaining that the judgment is against the weight of evidence. It is quite well settled that a ground of appeal complaining that the judgment is against the weight of evidence is a ground of pure fact. See: Ogbechie Vs Onochie (supra); Nwadike Vs Ibekwe (1987) 4 NWLR (Pt.67) 718; Teriba vs Adeyemo (2010) 11 NWLR (Pt.1211) 243; N.N.P.C. vs Famfa Oil Ltd. (2012) ALL FWLR (Pt. 535) 204; Umanah vs NDIC (2016) 14 NWLR (Pt.1533) 458.

The net effect of all that I have been saying above is that all the grounds of appeal contained in the Appellant’s Amended Notice of Appeal filed on 13/9/2021 and deemed filed on 20/9/2021 are of facts or mixed law and facts, for which no leave was sought or obtained. The appeal is therefore incompetent. This ground alone is sufficient to sustain the objection. It is accordingly upheld.

The appeal is hereby struck out for incompetence. The parties shall bear their respective costs in the appeal.

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SC.322/2006