Yisi Nigeria Limited V. Trade Bank Plc (2013)

LAWGLOBAL HUB Lead Judgment Report

Endorsed on the Writ of Summons issued at the Registry of the Ilorin Judicial Division of the Kwara State High court on 21/11/96 are the plaintiff’s claims against the defendant:

“1. The sum of $82,560.00 standing to the credit of the plaintiff as at 1st of May 1992 in his accounts with the defendant.

2. Interest on the said plaintiff’s funds at 21% per annum from 1st May, 1992 up to the date of judgment and thereafter at 10% on judgment sum until the judgment debt is fully liquidated.
3. A declaration that the plaintiff having paid a total of N5,200,000.00 as at 30th January, 1995 and having substantial credit due to them as claimed in paragraphs 1 and 2 above could not and is not owing the defendant a staggering debt of N9,072,227 as demanded in the defendant’s letter of 1st November, 1996 or owing any sum whatsoever.
4. An order of injunction restraining the defendant by themselves, their servants, agents and/or privies from further demanding payment of and/or taking any further steps towards the recovery of the alleged indebtedness of the plaintiff and/or the principal officers until the final determination of this suit.
5. An order on the defendant to render a correct and proper statement of all the accounts of the plaintiff with the defendant.”

In the further amended, and operative Statement of Claim dated, and filed on, 16th July 2001 the plaintiff claimed as per paragraph 20, the last paragraph thereof as follows:

“20. Wherefore the plaintiff denied owing the defendant any sums of money and claim from the defendant as per his Writ of Summons.”

In paragraph 26 of the amended Statement of Defence the defendant pleaded thus:

“26. Whereof the defendant denies the plaintiffs claim in its entirely and shall at the trial urge this Honourable Court to dismiss same for want of merit and substance.”

The plaintiff filed a reply to the Statement of Defence and concluded in paragraph 16 thereof as follows:

“16. Whereof the plaintiff denies the defence in its entirety and shall urge the Hon. Court to dismiss same at the trial for lack of merit.”

At the conclusion of the trial the trial Court gave judgment for the plaintiff on four of the five claims. Dissatisfied with the judgment, the defendant, now appellant, appealed to the Court of Appeal, Ilorin Division. The Court of Appeal allowed the appeal and set aside the judgment of the trial Court.

The plaintiff appealed to the Supreme Court on nine (9) grounds. In compliance with the rules and practice of the Court, learned Counsel for the parties filed and exchanged briefs of argument.

Learned Counsel for the appellant framed the following five issues from the nine grounds of appeal:

“5.01. Whether the indebtedness of the appellant was an issue for determination before the Court and if so whether the Lower Court was right when it held that issue No. 4 of the Respondents brief of argument before that Court had no sustaining ground

5.02, Whether the learned justices of the Court of Appeal were right to have held that the disputed unutilized funds of $82,560.00 claimed by the appellant had actually been paid for by the respondents to the appellant

5.03. Whether the lower Court was correct in accepting Exhibit D.11 as establishing the CBN regulation pleaded by the respondent and if so whether the respondent did in fact comply with the terms of the said regulation

5.04. Whether the learned Justices of the Court of Appeal were right in holding that the mere fact that the Chairman is said to be an illiterate will not avail him and that, that fact was not even established and based their judgment on that finding

5.05. Whether the lower Court was right to have held that the decision of the trial Court that the CBN could not have resolved the dispute between the parties who were already in Court of the time of their final directive was perverse”

In his brief of argument, learned Counsel for the Respondent adopted the five issues raised by the learned Counsel for the appellant. The sum total of the submission of learned Counsel for the appellant in issue 1 is that on the state of pleading and evidence led by the parties, the appellant’s indebtedness was an important issue for determination before the trial Court.

Learned Counsel impugned the decision of the lower Court that since there was no counter-claim the trial Court could not have competently pronounced on the quantum of indebtedness of the appellant. He argued that the lower Court was in error when it held that there was no ground to sustain issue 4. He urged the Court to resolve issue 1 in favour of the appellants.

In issue 2 learned Counsel reviewed the evidence adduced by the parties and submitted that Exhibits 10 and 10A were not proof of payment of the disputed fund to the appellant. He relied on Okonji v. Njokanma (1999) 12 SC (pt.11) at 150, 158 and contended that documents admitted in evidence speak for themselves. He argued that the admission of DW1 shows that Exhibits 10 and 10A do not constitute proof that Marble Finance Limited made payments to the appellant.

Learned Counsel contended that the Court below reversed the judgment of the trial Court by merely substituting its own views for those of the trial Court contrary to the decision of this Court in the case of Onyejekwe v. Onyejekwe (1999) 3 SC 1 at page 9. He referred to Exhibit D4 and said the entries made therein have no evidential value and that Exhibit D11 relied on by the Lower Court does not admit of payment by instalment for the repurchase of the unutilized foreign exchange.

In issue 3 learned Counsel submitted that the lower Court erred by accepting the contents of Exhibit D.11 as establishing the CBN regulation pleaded by the respondent and that the said Exhibit showed that the CBN had settled the dispute between the parties. He argued that the lower Court was in error to have declared the finding of the trial Court that the CBN and the defendant could not have acted where this action was pending as perverse. He maintained that Exhibit D.11 does not contain the CBN regulation pleaded by the respondent.

In issue 4 learned Counsel said that it was pleaded that all the directors of the appellant company were illiterates and the pleading was supported by evidence at the trial. He said that the learned trial Judge saw the witness and believed the unchallenged evidence. He stressed that the lower Court was in error to reject the finding of the trial court that PW2 is an illiterate and fell into greater error when it held that illiteracy will not avail the witness.

He said that the respondent played on the illiteracy of the PW2 by giving the cheques issued by Marble Finance Limited under the cover of usual mode of payment from the SME loan account. He said that the evidence of DW1 that the company Marble Finance Limited did not make any payment to the appellant is an admission against interest and urged the Court to reverse the judgment of the Lower Court.

In issue 5 he said that the appellant commenced the suit on November 21st, 1996 and pleaded that at the institution of the suit the CBN had not responded to the appellant’s petition and evidence was led in support of the pleading. He said that the respondent tendered Exhibit D10 dated 27/1/97 by which adjustment, was made on the appellant’s account on 24th January, 1997, at which time the parties were already in Court.

He relied on Vaswani Trading Company v. Savalakh & Co (1972) 12 SC 77 at 82 and urged that the CBN should not have intervened when the matter was already in Court. According to learned Counsel, it is trite law that once parties have handed over their dispute to the Law Court every other action must automatically come to a halt to await the Court’s decision. Learned Counsel summarised his argument and urged us to allow the appeal, set aside the judgment of the lower Court and restore the judgment of the trial Court.

Arguing issue 1 in his brief, learned Counsel for the respondent referred to pages 292-293 of the record and said that the lower Court disposed of issue No. 4 in the appellant’s, then respondent’s, brief as it did not arise from any of the 13 grounds of appeal before the Court below. The lower Court struck out the issue as incompetent. He reproduced issue 4 in the Court below:

“4. Whether the learned trial Judge was correct when he held that the appellant’s statement of account which concealed the respondent’s account for 2 years of the accounting period among other vital contradictions could not be relied on and acted upon by the Court.”

He submitted that the issue of indebtedness is separate and distinct from the issue reproduced above. He referred to page 74 of the record and said that the PW1 agreed that the appellant was indebted to the respondent and that the issue in dispute was the quantum of the debt. He relied on Fabiyi v. Adeniyi & ors (2000) 6 NWLR (Pt. 662) 532 at 546; Onyesoh v. Nnebedum (1992) 3 NWLR (Pt.229) 315 at 334 & 345 in support of his contention that any issue which does not arise from the grounds of appeal is incompetent. He argued further that grounds 9, 10 and 11 of the grounds of appeal in the Court below on which the appellant sought to foist issue 4 before the Lower Court have nothing to do with the said issue.

He urged the Court to hold that there is no merit in grounds 1 and 10 of the grounds of appeal and to dismiss same in resolving issue 4 against the appellant.

In issue 2, learned Counsel referred to page 21 of the record where the PW1 said under cross-examination:

“I know that the plaintiff petitioned the CBN and the CBN intervened and the defendant in accordance with the directive of the CBN credited the plaintiffs account with the shortfall.”

He referred to page 81 for the evidence of DW2 to the same effect. He submitted that the court below was right when it held that the award of US$ 82,560.00 to the appellant by the trial court could not stand and set it aside. He urged the court to resolve issue 2 against the appellant and in favour of the respondent.

In issue 3 learned counsel referred to Exhibit D11 written by the CBN in response to the petition of the appellant. He referred to paragraph 14 of the amended statement of defence on the repurchase of the unutilized US$86,560.00 and the evidence of DW1 and DW2 and submitted that the trial court was in error when it held that the respondent did not adduce e evidence on the CBN regulation pleaded. He relied on Ikono L.G v. Debeacon Fin. & Sec. Ltd (2004) 4 NWLR (Pt.256) 128 at 142-143; Akalonu v. The State (2000) 2 NWLR (Pt.643) 165 to say that the decision of the trial Court was not based on the evidence adduced before it on the CBN regulation, adding that the term in the CBN regulation allegedly breached by the respondent was not pleaded before the Court.

He reproduced paragraph 10 of the reply to the statement of defence and said issues were joined only on whether or not the repurchase was done by the respondent, adding that the terms of the CBN regulation was not an issue in the appeal. He urged the Court to strike out the second part of issue 3 as incompetent, and to resolve the first arm against the appellant. He urged the Court to dismiss the appeal on grounds 2, 3 and 9 of the grounds of appeal. Issue 4 is on the alleged illiteracy of DW2. Learned Counsel submitted that the lower Court was right on its decision that the alleged illiteracy of the DW2 will not avail him. He argued that so long as a third party transacts business for the illiterate person according to his instruction the illiterate principal will be bound by what the third party does as his agent.

He reproduced a portion of the evidence of PW2 at page 81 of the record, thus:

“On Exhibit 10, is clearly written Marble Finance Ltd. Similarly Marble Finance Ltd. is written on Exhibit 10A.”

He argued that the PW2 who could read the contents of Exhibits 10 and 10A cannot be said to be illiterate based exclusively on his testimony. Learned Counsel once more referred to page 81 of the record for the evidence that the “PW2 clearly knew what he was doing in relation to the Marble Finance cheque and urged the Court to dismiss grounds 6 and 7 of the grounds of appeal.

On issue 5 learned Counsel for the respondent said that the Lower Court was right to have reversed the decision of the trial Court based on the doctrine of lis pendens in relation to the intervention of the CBN in the dispute between the parties. He said Exhibit D11 was dated 30/11/96 while the suit was commenced on 21/11/96 which means that the CBN intervened before the suit was filed. He urged the Court to resolve issue 5 in the negative and to dismiss ground 9 of the grounds of appeal. He summarised his argument and urged the Court to dismiss the appeal in its entirety.

The marriage of the grounds of appeal and the five issues framed therefrom by learned Counsel for the appellant and adopted by learned Counsel for the respondent needs some sort of surgical operation to bring sanity into it.

At page 8 of the appellant’s brief, learned Counsel stated:

“LINKAGE OF ISSUES TO THE GROUNDS OF APPEAL:

A. ISSUE No.1 relates to Grounds of Appeal Nos.1 & 10.

B. ISSUE No.2 relates to Grounds of Appeal Nos.2, 3, 4, 5 and 8.

C. ISSUE No.3 relates Grounds of Appeal Nos.2, 3, & 9.

D. ISSUE No.4 relates to Grounds of Appeal No. 6 & 7″

E. ISSUE No.5 relates to Ground of Appeal No.9.”

From the table reproduced above, issues 2 and 3 were framed from Ground 2 and issues 3 and 5 were framed from Ground 9 of the Grounds of Appeal. This is proliferation of issues which should be avoided. See Ugo v. Obiekwe (1989) 2 SC (Pt.11) 41. The principle governing the formulation of issues for determination is that a number of grounds of appeal could, where appropriate, be formulated into a single issue running through them. It is undesirable to split issues in a ground of appeal as was done in the appellant’s brief. See Fabiyi v. Anretiolu (1992) 10 SCNJ 1 at 2.

An issue for determination must arise from one or a combination of grounds of appeal. See Nwudenyi & ors v. Aleke (1996) 4 NWLR (Pt.449) 349 and on no account should more than one issue be framed from one ground of appeal. An issue emerges from one or more grounds of appeal not the other way round. See Garba v. The State (2000) 4 SCNJ 315.

Appellant has formulated more than one issue from grounds 2 and 9 of his grounds of appeal and this is contrary to established principle of law. See Annie & ors v. Chief Uzorka & ors (1993) 8 NWLR (Pt.309) 1 SC; A-G Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646; Nwosu v. Imo State Environmental Sanitation Authority (1990) 12 NWLR (Pt.135) 688 at 214. Issues 2 and 3 and issues 3 and 5 as well as ground 2 and 9 of the grounds of appeal from whether they were framed are hereby struck out.

Issues 2, 3 and 5 having been struck out, the appellant is left with issues 1 and 4. Issue 1 relates to grounds 1 and 10 and issue 4 relates to grounds 6 and 7 of the grounds of appeal. The two issues are hereunder reproduced for ease of reference:

“Issue 1: Whether the indebtedness of the appellant was an issue for determination before the Court and if so whether the Lower Court was right when it held that issue No. 4 of the respondent’s brief of argument before that Court had no sustaining ground

Issue 4: Whether the learned Justices of the Court of Appeal were right in holding that the mere fact that the Chairman is said to be on illiterate will not avail him in that, that fact was not even substantiated, and based their judgment on that finding”

I have carefully considered the pleadings, the judgments of the two Courts below, the issues raised and the arguments of learned Counsel in their briefs. It is my humble view that striped of its extravagant build up and reduced to its true dimensions, the appellant’s case as the PW2 himself put it under cross-examination before the trial Court is “the crux of this action is the 82,000 Dollars which we are saying that we have not got.” See page 80 of the record.

Shorn of its colourful but unhelpful dressing, the above had been the issue in contention between the parties from the trial Court up to this Court. Though the PW2 stated the sum as 82,000 Dollars I will prefer the sum of $82,560.00 in the Writ of Summons and the statement of claim.

Strictly speaking, the appellate Court is not bound by issues formulated by the parties. In so far as no new issues outside the proceedings are introduced the Court should not hesitate to attempt to identify the appropriate issues in the circumstances of the case. See Fabiyi v. Adeniyi (2000) 78 LRCN 1402 at 1418; Bankole v. Pelu (1991) 8 NWLR (Pt.211) 523; Government of Kogi State v. Yakubu Mohammed (2001) 85 LRCN 756 at 766.

In determining the appeal, therefore, I will take a cue from the appellant (PW2) and condense the issues formulated and argued by the parties to the question:

“Whether or not from the pleadings and the evidence the appellant has been edited with the unutilized foreign exchange of $82,560.00.”

The rest of the issues raised in the appeal such as lis pendens and the much-publicised illiteracy of the PW2 and mere red herrings that have no relevance to the question whether or not the PW2 got the 82,560 dollars.

I shall now determine the issue I have formulated based on the totality of materials before the Court. The learned trial judge based the decision in favour of the appellant solely on admission by the DW1. His Lordship held:

“On the issue of whether or not the plaintiff is entitled to its unutilized 82,560 SME loan, the DW1’s admission is that no payment was made to the plaintiff in respect of same. That settles the issue as it is a clear admission against interest.”

See page 129 of the record.

With profound respect to the learned trial Court whether or not the plaintiff is entitled to its unutilized 582,560 SME loan is not the same thing as the issue in contention between the parties which is whether or not the plaintiff’s account has been credited with the said sum. The entitlement of the appellant to the said sum was not in issue at the trial and in any case the alleged admission of DW1 that no payment was made to the plaintiff in respect of the unutilized sum does not answer the question the trial Court raised as to whether or not the appellant is entitled to the said sum.

The real issue of whether or not the account of the appellant had been credited with the unutilized sum of $82,560 was left hanging. Be that as it may the evidence led at the trial will be relied upon to answer the question.

PW1, an Auditor in the firm of chartered Accountants – Suleiman & Co swore, inter alia, that:

“From the available records and from my own personal knowledge of accounting the defendant Bank directly sold the unutilized foreign exchange to Marble Finance and used Marble Finance cheque to credit the plaintiff’s account.”

See page 61 of the record.

Under cross-examination, the witness said:

“I was made aware that the money realized from the sale of the unutilized balance was credited to the account of the plaintiff with the ruling rote which was far below the existing rate. The CBN released it to the plaintiff at about N18.00 to a dollar but the defendant bank credited the plaintiffs account at N9.00 to a dollar. I know that the plaintiff petitioned the CBN and the CBN intervened and the defendant in accordance with the directive of the CBN credited the plaintiffs account with the shortfall excluding the interest that accrued on the amount.”

See page 21 of the record.

PW2 in his evidence-in-chief said:

“The crux of this action is the 82,000 dollars which we are saying that we have not got.”

See page 80 of the record.

However, at page 81 the witness said:

“After the Auditors Report I instructed my lawyer to write to the CBN about the 82,000 dollars and he did. I am aware that the CBN wrote directing that the amount be credited to my (plaintiffs) account using the ruling exchange rate at that time of the transaction. I am aware that the Trade Bank mandatory (sic) complied with the direction and credited the plaintiffs account with the amount.”

DW2 at page 96 of the records said in his evidence-in-chief:

“The allegation that the Bank is holding any 82,560 US Dollars of the plaintiff is untrue.”

On Exhibit 4 at page 3 the witness read the entry made on 14/8/96 as payment of shortfall of payment of 82,560 US Dollars of the sum of N542,508.00

At page 123 of the record, the learned trial Judge formulated 9 issues for determination. The nearest the trial Court got to the matter in dispute was issue 7 which is:

“Is the plaintiff entitled to the recovery of the unutilized sum of 82,560 US dollars with interest”

That was not an issue between the parties as shown in the evidence. The trial Court evaded the issue which is whether or not the plaintiffs account had been credited with the sum of 82,560 US Dollars. Nowhere in the judgment did the trial Court not raise or settle the above question, even though on the plaintiff’s evidence reproduced above, the plaintiff had got “the 82,000 Dollars which we are saying that we have not got.”

Based on the evidence before the trial Court which that Court completely ignored in its judgment but which the lower Court rightly considered I have come to the irresistible conclusion that the appellant’s account was credited with the appellant’s knowledge, with the 82,560 US Dollars or its equivalent at the rate of N9.00 to the dollar and at the intervention of CBN on the petition of the appellant, the appellant’s account was credited with the shortfall at N18.00 to the dollar.

A false impression appears to have been created that the appellant is entitled to the unutilized sum of 82,560 US Dollars in species. This is not correct. In respect to the sum of 82,560 US dollars the respondent was a creditor to the appellant. The appellant is entitled to the money in dollars or its equivalent in local currency. Appellant did not object to the payment of the naira equivalent into his account. He only complained about the rate of exchange to the CBN and the respondent complied with the CBN’s directive.

The subsidiary issue of the alleged stark illiteracy of the PW2 is non sequitor. PW2 claimed he could read and write in Yoruba language.

He said he was a stark illiterate, perhaps because “I did not go to school.” See page 30 of the record.

He does not have to go to school to be literate in any language and this much is made clear by his assertion that he can write and read in Yoruba language without having been to school. He cannot use his illiteracy as a sword. In any case he is bound by the action of a third party action on his instruction. As argued by learned counsel for the respondent he is bound by the acts of his agent carried out on his instruction.

The suit from which this appeal arose was prompted by corporate greed and a desire to have a double portion. The evidence showed that the matter should not have come to court in the first place. The issue is resolved against the appellant and in favour of the respondent and consequently it is my order that the appeal be and is hereby, dismissed for want of merit.

Appellant is to pay cost assessed and fixed at N500,000.00 to the respondent.

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SC.86/2005