STANBIC IBTC BANK v. LONGTERM GLOBAL CAPITAL LTD & ORS

(2018) LPELR-44053(CA)PRACTICE AREA: LAW OF CONTRACT

INTRODUCTION

Once there is a valid offer, a corresponding acceptance, payment of consideration, and parties are ad idem that they have an intention to create a legal relationship the law takes it that there is a valid contract that binds the parties involved and the business of the Court is limited to giving effect to the terms of the contract when called upon in case of contractual disputes.

However, there are instances where the aforementioned are present yet a contract will be rendered illegal, invalid, void, voidable, and its terms unenforceable. Of such instance is where the contract is laced with Fraudulent Misrepresentation of certain facts by a party (representor) thereby misleading the other (representee) and inducing the representee to alter his position by entering into a contract or transaction with the representor.

Therefore, during contractual negotiations, there must be full disclosure of all necessary information by the contracting parties. There are essentially two types of obligation which could be imposed by the Courts upon contracting parties. The first is to disclose all known material facts to the other contracting party. The second is a duty to refrain from making active misrepresentations; that is to say, a contracting party is not compelled to disclose all information, but once he does disclose, he must do so truthfully.

Where a party is guilty of fraudulent misrepresentation, the representee can maintain an action for damages, he can also institute proceedings for the recission of the contract or transaction.

FACTS

There was a transaction between Longterm Global Capital Ltd, Lakeside Mews Ltd, Mr. Patrick Akinkotu, and Mrs. Oluyinka Akinkotu (1st-4th Respondents) and Stanbic IBTC Bank Plc. (Appellant) in relation to the sale of the shares of Starcomms Plc. (5th Respondent) a public company, by private placement. In law the sale of the Starcomms Plc.’s shares in any form whatsoever, whether by private placement or public offer, is strictly regulated by the provisions of the Investments and Securities Act, and the Securities and Exchange Commission Rules and Regulations made pursuant to the Act.

Longterm Global Capital Ltd, Lakeside Mews Ltd, Mr. Patrick Akinkotu, and Mrs. Oluyinka Akinkotu sometimes in 2008 agreed to and in fact purchased 100 million units of the Starcomms Plc.’s shares from Stanbic IBTC Bank Plc. through private placement vide an investor letter for private placement which at the time was not approved by the Securities and Exchange Commission (SEC) but was expected to be finally approved latest on 31/5/2008. It was agreed that if the said approval was not obtained or granted in respect of the said investor letter all monies paid by the Longterm Global Capital Ltd, Lakeside Mews Ltd, Mr. Patrick Akinkotu, and Mrs. Oluyinka Akinkotu shall be refunded in full.

 

However, it was subsequently discovered, that an entirely different investor letter for private placement was prepared and presented to SEC for clearance and registration and/or approval by Stanbic IBTC Bank Plc. and Starcomms Plc. in conjunction with a co-issuing house, Chapel Hill Advisory Partners Ltd in respect of the same private placement without informing Longterm Global Capital Ltd, Lakeside Mews Ltd, Mr. Patrick Akinkotu, and Mrs. Oluyinka Akinkotu, and on the basis of the new offer documents, which were cleared and registered by SEC for the same private placement the shares of Starcomms were sold to other investors.

 

Miffed with the turn of events, Longterm Global Capital Ltd, Lakeside Mews Ltd, Mr. Patrick Akinkotu, and Mrs. Oluyinka Akinkotu instituted an action at the Federal High Court Lagos Division claiming that they were misled into buying the shares of Starcomms Plc. by the misrepresentation and non disclosure by Stanbic IBTC Bank Plc. According to them, if they had known of the existence of the other offer document presented to and approved by SEC, they would not have proceeded with the purchase of the shares which they claim have become worthless or worth much less than what they paid for them.

 

At the close of evidence, the parties filed their respective final written addresses, the trial Court Coram: J. T. Tsoho J. delivered judgment in favour of the Longterm Global Capital Ltd, Lakeside Mews Ltd, Mr. Patrick Akinkotu, and Mrs. Oluyinka Akinkotu in which the sale of 100,000,000 units of share in Starcomms Plc. to them through Stanbic IBTC Bank Plc. was set aside and an order was made against Starcomms Plc and Stanbic IBTC Bank Plc. jointly and severally to refund to Longterm Global Capital Ltd, Lakeside Mews Ltd, Mr. Patrick Akinkotu, and Mrs. Oluyinka Akinkotu the sum of N1.3 Billion paid for the said 100,000,000 shares. They were also granted the relief for pre-judgment interest.

 

Dissatisfied with the judgment of the trial Court, Stanbic IBTC Bank Plc. appealed to the Lagos Division of the Court of Appeal Coram: MOHAMMED LAWAL GARBA, J.C.A., BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment), and JAMILU YAMMAMA TUKUR, J.C.A.

 

 

ISSUES FOR DETERMINATION

The Court determined the appeal on the following issues:

 

“1. Whether the 2nd – 4th Respondents have the requisite locus standi to institute and maintain the suit against the Appellant and the 5th Respondent by reason of whether they had sold or merely consolidated their 75 million units of shares by the 5th Respondent?

 

  1. Whether in the entire circumstances of this appeal, taking into consideration the pleadings, evidence and the applicable principles of law, the 1st – 4th Respondents were bad investors being ‘impari delicto’ in any irregularity in the purchase by them of the 100 million units of shares in the 5th Respondent through the Appellant or whether the 1st – 4th Respondents were genuine investors who were misled by the misrepresentation of the Appellant into purchasing the 100 million shares in the 5th Respondent on the basis of Exhibit A?

 

  1. Whether the Court below was right when it held that the 1st – 4th Respondent made out their case and were thus entitled to judgment, including the relief of pre-judgment interest against the Appellant and the 5th Respondent.”

 

DECISION

 

On the whole, the appeal was unanimously dismissed for lacking grossly in merit. The judgment of J. T. Tsoho J. was affirmed.

RATIO DECIDENDI

CONTRACT – BINDING CONTRACT: What constitutes a binding contract

“In law, to constitute a binding contract between parties, there must be a meeting of the mind often referred to as consensus ad idem. The mutual consent relates to offer and acceptance. While an offer is the expression by a party of readiness to contract on the terms specified by him by which if accepted by the offeree gives rise to a binding contract, the offer only matures into a contract where the offeree signifies a clear and unequivocal intention to accept the offer. An offer can be accepted in such a manner as may be implied, such as doing an act which the person expecting acceptance wants done. On the other hand, an invitation to treat is simply the first step in negotiations between the parties to a contract. It may or may not lead to a definite offer being made by one of the parties to the other in the negotiations. In law therefore, an invitation to treat is thus not an agreement or contract. See Neka BBB Manufacturing Co. Ltd V. ACB Ltd (2004) 2 NWLR (PT. 858) 521. See also Unitab Nigeria Ltd V. Engr. Oyelola & Anor (2005) All FWLR (Pt. 286) 824 @ pp. 829-830; Okugbule & Anor V. Oyegbola & Ors (1990) 4 NWLR (pt. 147) 723; See also Afolabi V. Polymera Industries Ltd (1967) 1 All NLR 144; Nneji v. Zakhem Construction Nig. Ltd (2006) 12 NWLR (Pt. 994) 297; BFI Group Corporation V. Bureau of Public Enterprises (2012) LPELR-9339 (SC).

 

However, in whatever form a contract takes the terms as ad idem between the parties must be shown coupled with an intention to create a legal relationship between the parties backed by offer, acceptance and consideration. Once these elements are present, whether oral or written or by conduct of the parties, the law is that such parties to a contract duly entered by them are bound by the terms of their contract. See Nwankwo V. E.D.U.S.U.A (2007) 5 NWLR (Pt. 1024) 377 @ p. 410. See also Larmie V. D.P.M.S Ltd (2005) 18 NWLR (Pt. 985) 438; Nika Fishing Co Ltd V. Lavina Corp (2008) 16 NWLR (pt. 1114) 509; Bilante Inter’l Ltd V. MDXC (2011) 15 NWLR (Pt. 1270) 407 @ p. 436.” Per GEORGEWILL, J.C.A. (Pp. 86-88, Paras. D-B).

 

CONTRACT – ILLEGAL/VOID CONTRACT: Whether a party who has benefitted from a contract can resile from his obligation under such contract on the pretext of illegality

“…I shall pause to consider, albeit briefly, the issue of impari delicto as it touches on the parties if any. I am aware that the law, though not about morality of what is right or wrong, but still, never, allows itself to be used as an engine of fraud by one party against the other, particularly in a Court of law which is as well a Court of justice and equity. It is also true in law that a party would not be allowed to enter into a transaction with the full knowledge of its irregularity, take the benefit and then turn round to repudiate the transaction. See the evergreen words of Sir Jessel in his cerebral work: The Golden Age of Laisser Faire, citing Printing & Numerical Registering C. V. Sampson 1875 LR 19 EQ @ P. 485, where he aptly stated inter alia thus:

 

“If there is one thing more than another which public policy requires, is that men of full age and competent understanding shall have the utmost liberty of contracting and that their contracts, when entered into freely and voluntarily, shall be held sacred and shall be enforced by Courts of justice”.

 

It is also true in law parties to an illegal contract cannot seek any remedy over such illegal contract in Court, yet in law no one can be allowed in good conscience and in equity, to benefit from his own wrong and resile from a contract after taking the benefit therefrom. In law therefore, when parties to a transaction are both at fault rendering the transaction irregular or faulty, it is said that the condition of the Defendant is better in that Claimant who is also in fault would stand no better chance in repudiating the transaction, which though found or turned out to be irregular, he was also in fault. This is buttressed by the Latin maxim: ‘in pari delicto potion est condition defendant’. See Ukejianya V. Uchendu (1950) 13 WACA 45: Ekpenyong V. Nyong (1975) 2 SC 71; Abubakri V. Smith (1975) 6 SC 31, Oyegoke V. Iriguna (2001) FWLR (Pt. 75) 448 @ p. 451; Ibrahim V. Osim (1988) 3 NWLR (Pt. 82) 257 @ p. 278; Oilfield Supply Centre Ltd V. Lloyd Johnson (1987) 2 NWLR (Pt. 58) 625); Pan Bisbilder (Nig) Ltd V. FBN Ltd (2000) 1 NWLR (Pt. 642) 684 @ p. 695.” Per GEORGEWILL, J.C.A. (Pp. 101-102, Paras. A-F).

 

CASE LAW – FOREIGN DECISION: Binding effect of foreign decisions on Nigerian Courts

“My Lords, as I bring my consideration of issue two to a close, I observe that a lot of hair splitting initially took place both in ground 4 of the grounds of appeal and under issue three in the Appellant’s amended brief on the refusal or failure of the Court below to follow the decision of the United States District Court of Ohio in the Pharoah’s case so much so that it formed both a ground of appeal and part of an issue for determination. Happily, upon being confronted by the unassailable submission in the 1st -4th Respondents brief, as to the status of foreign decision on Nigerian Courts, the Appellant’s counsel had, commendably, beaten a retreat to concede that at best a foreign decision is persuasive and not binding on Nigerian Courts, more so when the decision relied upon was a decision of a High Court equivalent in status to the Court below. They are indeed without any exception merely persuasive and authorities on this position of the law are legion! In Olafisoye V. FRN (2004) 4 NWLR (Pt. 864) 580, Niki Tobi JSC (God bless his soul) had emphatically held inter alia thus:

 

“Decisions of Foreign Countries are merely of persuasive authority. This Court will certainly allow itself to be persuaded in appropriate cases but this Court will not stray away from its course of interpreting the Nigerian Constitution by resorting to foreign decisions which were decided strictly in the context of their Constitution and which are not similar to ours”.

 

See also Okon V. The State (1988) 1 NWLR (Pt. 69) 172 @ p. 180, where Nnemeka-Agu, JSC had stated inter alia thus:

 

”It is well to remember not only that a foreign decision should at best be of persuasive authority in a Nigerian Court but also that before it can even qualify as such, the legislation, substantive or adjectival, upon which it was based must be in pari material with our own. It is dangerous to follow a foreign decision simply because its wording approximates to our own. Nigerian Courts are obliged to give Nigerian Legislation its natural and ordinary meaning, taking into account our own sociological circumstances as well as other factors which form the background of our Local Legislation in question. A ‘Copy-Cart’ transportation of an English decision may in some circumstance turn out to be inimical to justice in our own Courts”.

 

See also Adetoun Oladeji (Nig) Ltd V. Nigerian Breweries PLC (2007) LPELR 160 (SC) Dada V. The State (1977) NCLR 135; Eliochin Nig. Ltd. V. Mbadiwe (1986) 1 NWLR (Pt. 14) 47; Nigerian National Supply Co. Ltd V. Alhaji Hamajode Sabana Co. Ltd (No 3) (1988) 2 NWLR (Pt. 74) 23: Senator Adesanya V. President of the Federal Republic of Nigeria (1981) 5 SC 112; Yahaya V. State (2002) 3 NWLR (Pt. 754) 289.” Per GEORGEWILL, J.C.A. (Pp. 107-109, Paras. B-D).

 

EVIDENCE – CROSS-EXAMINATION: Effect of evidence elicited during cross-examination but not on facts pleaded

“In law, evidence elicited under cross examination but not on facts pleaded does not enjoy a higher status than evidence in chief given on facts not pleaded merely because it was obtained under cross examination as they both go to no issue. Thus, it is only where the evidence elicited under cross examination is on facts pleaded either by the party being cross examined or by the party cross examining that such evidence is good evidence for the cross examining party if it is in support of his case. See Daggash V. Bulama (2004) 14 NWLR (Pt. 892) 144 @ p. 241. See also Ofem & Anor V. Ewa & Ors (2012) LPELR- 785 (CA); Bamgboye & Ors V. Olarewaju (1991) 4 NWLR (Pt. 184) 132 @ p. 155; Gaji & Ors V. Paye (2003) 8 NWLR (Pt. 825) 583.” Per GEORGEWILL, J.C.A. (Pp. 49-50, Paras. F-D).

 

EVIDENCE – PROOF: What a party alleging fraudulent misrepresentation must prove

“In law to prove misrepresentation, the party so alleging must plead and prove the following elements constituting fraudulent misrepresentation, namely the representation must be a statement of existing facts; the representation must be material and unambiguous; and the representee must show that he has acted in reliance on the misrepresentation. It is thus important to note that in order to succeed in an allegation of fraudulent misrepresentation, the party so alleging and who carries the burden of proving that these essential elements of fraudulent misrepresentation must faithfully on the balance of probability of preponderance of evidence discharge this burden to the satisfaction of the Court failing, which his claim must fail. See Afegbai V. AG Edo State (2001) 14 NWLR (Pt. 733) 435 @ p. 445. See Section 131(2) Evidence Act.” Per GEORGEWILL, J.C.A. (P. 89, Paras. A-E).

 

 

JUDGMENT AND ORDER – AWARD OF INTEREST: Position of the law as regards award of pre-judgment interest

“The law on pre-judgment interest is that it is to be awarded where there is an agreement for payment of interest or under mercantile custom or under principle of equity, as in breach of fiduciary duty. In all such cases the law is that pre-judgment interest is as of right. The Appellant is no doubt a licensed Commercial Bank and thus bound by its trade custom to give interest on money lodged with it. The law requires a person claiming such right to pre-judgment interest to so plead and prove at the trial. In law generally the Courts have the power to award post-judgment interest but not pre-judgment interest since pre-judgment interest which must be based on pleadings and proof by the party so claiming entitlement to it save if it is part of the mercantile custom of the transaction involving the parties.

 

In all therefore, it is never granted as of course, but must either be part of the contemplation of the parties by virtue of their contract terms or mercantile custom of fiduciary duty or it is specifically pleaded and proved. In Ferrero & Company Ltd. V. Henkel Chemicals Nigeria Ltd. (2011) LPELR – 12 (SC). His Lordship, Onnoghen, JSC (as he then was, now CJN) had expatiated on the rationale behind this principle of law inter alia thus:

 

“It follows that before a party can claim pre-judgment interest, he has to plead not only his entitlement to the interest but the basis of the entitlement either by Statute or contract/agreement between the parties, or mercantile custom or principle of equity, such as breach of fiduciary relationship. It is not for the Court to speculate or conjecture or assume the facts relevant to the claim. The relevant facts must be pleaded, as fact not pleaded goes to no issue. In addition to the requirement of pleading the relevant facts, the Plaintiff must adduce evidence at the trial in proof of the relevant facts. Where there is no evidence in proof of the facts, then the pleadings are deemed abandoned.”

 

See also UBA Plc. V. Oranuba (2013) LPELR- 20692 (CA). See also Hausa V. FBN Plc (2000) 9 NWLR (Pt. 671) 64; Ekwunife V. Wayne W/A Ltd (1989) NWLR (Pt. 122) 422: Hinma Merchant Ltd V. Alhaji Inuwa Audu (1996) 5 NWLR (Pt. 347) 667 @ pp. 676-677; Stabilini Visinoni Ltd V. Metalum Ltd. (2007) LPELR-8661 (CA) UBN Ltd V. Salami (1998) 3 NWLR (Pt. 538) 347: Idakula V. Richards (2000) FWLR (Pt. 14) 2439; Jallco Ltd. V. Owoniboys Tech Serv. Ltd. (1995) 4 NWLR (Pt. 391) 534 @ p. 550; Petgas Resources Ltd. V. Louts N. Mbanefo (2007) 6 NWLR (Pt. 1031) 545 @ p. 549; Consolidated Resources Limited V. Abofar Ventures Nigeria Limited (2007) 6 NWLR (pt. 1030) 225.” Per GEORGEWILL, J.C.A. (Pp. 120-122, Paras. B-D).

CONTRACT – WAIVER IN CONTRACT: Principle of waiver

“My lords, in law the concept of waiver is one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both. Thus, if one party by his conduct leads another to believe that the strict rights arising under contract between himself and another will not be insisted upon, intending that the other person should act on that belief and does not act on it, then the first party has waived his right and will not afterwards be allowed to insist on the strict rights when it will be inequitable for him so to do. In Nigerian Bank of Commerce and Industry v Integrated Gas (Nigeria) Limited (2005) 4 NWLR (Pt. 916) @ 642-643, the Supreme Court pronounced with finality on this issue inter alia thus:

 

“If one party by his conduct leads another to believe that the strict rights arising under the contract will not be insisted upon, intending that the other should act on that belief, and he does act on it, then the first party will not afterwards be allowed to insist on the strict right when it will be inequalities for him to do so. Thus where the defendant relied upon the failure of the plaintiff to perform a condition of the contract as to the precise time or mode of performance fixed by the contract as a ground for cancelling or repudiating the contract or as justifying his own refusal to perform his own obligation. The plaintiff may reply that the defendant has waived his right to insist that the contract should be or have been performed according to its original tenor. Waiver is not a cause of action, but a man may be debarred by the doctrine of waiver from asserting that an original condition precedent is still operative and binding waiver may be oral or written or inferred form conduct.”

 

See also United Calabar & Co V. Elder Dempster Lines Ltd (1972) All NLR 244; Tsvetan, Dimitrov V. Multichoice Nigeria Ltd (2005) 13 NWLR (Pt. 943) 391; Ariori V. Elemo (1983) 1 SCNLR: Total Nigeria Plc V. Chief Elijah Omoniyi Ajayi (2004) 3 NWLR (Pt. 869) @ pp. 285-286.

 

In Nigeria Universal Bank Ltd v. Samba Petroleum Company Ltd (2006) 12 NWLR (Pt. 993) @ p. 122, it was reiterated inter alia thus:

 

“Waiver carries some element of abandonment of a known legal right. By his conduct the person has given impression that he is not ready to pursue his legal right in the matter. He may not say so in specific words. He may not say so at all. But once his conduct shows that trend, a Court of Law will hold that he has waived his right.”

 

See also Prince Sikiru Adebayo Sobamowo V. Prince Alhaji Waheed Elemuren (2008) 11 NWLR (PT. 1097) @ 31; Nigeria Bank of Commerce and Industry V. Integrated Gas (Nigeria) Ltd (2005) 4 NWLR (Pt. 916) @ 642-643. See B. Stabilin & Co. Ltd V. Nwabueze Obasi (1997) 9 NWLR (Pt. 520) 293 @ p. 305. See also Bioku V. Light Machine (1986) 5 NWLR (Pt. 39) 42: Udochukwu V. Ngene (1992) 8 NWLR (Pt. 261) 565.

 

In Guinness (Nig.) Plc V. Onegbadan (2012) 15 NWLR (Pt. 1322) 33 @ p. 50, it was also held inter alia thus:

 

“It is trite law that a person who is not under legal disability should be the best judge of his own interest. Where he had full knowledge of his rights, interest, benefits or profits conferred upon him by statute or accorded to him under a statute and intentionally yet interestingly decided to give up all or some of these statutory rights, he therefore cannot be heard to complain afterwards.” Per GEORGEWILL, J.C.A. (Pp. 93-96, Paras. A-A).

 

 

 

 

STANBIC IBTC BANK v. LONGTERM GLOBAL CAPITAL LTD & ORS

(2018) LPELR-44053(CA)

 

 

PRACTICE AREA: LAW OF CONTRACT

 

 

 

INTRODUCTION

 

 

 

Once there is a valid offer, a corresponding acceptance, payment of consideration, and parties are ad idem that they have an intention to create a legal relationship the law takes it that there is a valid contract that binds the parties involved and the business of the Court is limited to giving effect to the terms of the contract when called upon in case of contractual disputes.

 

 

However, there are instances where the aforementioned are present yet a contract will be rendered illegal, invalid, void, voidable, and its terms unenforceable. Of such instance is where the contract is laced with Fraudulent Misrepresentation of certain facts by a party (representor) thereby misleading the other (representee) and inducing the representee to alter his position by entering into a contract or transaction with the representor.

 

 

Therefore, during contractual negotiations, there must be full disclosure of all necessary information by the contracting parties. There are essentially two types of obligation which could be imposed by the Courts upon contracting parties. The first is to disclose all known material facts to the other contracting party. The second is a duty to refrain from making active misrepresentations; that is to say, a contracting party is not compelled to disclose all information, but once he does disclose, he must do so truthfully.

 

 

Where a party is guilty of fraudulent misrepresentation, the representee can maintain an action for damages, he can also institute proceedings for the recission of the contract or transaction.

 

 

FACTS

 

 

 

There was a transaction between Longterm Global Capital Ltd, Lakeside Mews Ltd, Mr. Patrick Akinkotu, and Mrs. Oluyinka Akinkotu (1st-4th Respondents) and Stanbic IBTC Bank Plc. (Appellant) in relation to the sale of the shares of Starcomms Plc. (5th Respondent) a public company, by private placement. In law the sale of the Starcomms Plc.’s shares in any form whatsoever, whether by private placement or public offer, is strictly regulated by the provisions of the Investments and Securities Act, and the Securities and Exchange Commission Rules and Regulations made pursuant to the Act.

 

Longterm Global Capital Ltd, Lakeside Mews Ltd, Mr. Patrick Akinkotu, and Mrs. Oluyinka Akinkotu sometimes in 2008 agreed to and in fact purchased 100 million units of the Starcomms Plc.’s shares from Stanbic IBTC Bank Plc. through private placement vide an investor letter for private placement which at the time was not approved by the Securities and Exchange Commission (SEC) but was expected to be finally approved latest on 31/5/2008. It was agreed that if the said approval was not obtained or granted in respect of the said investor letter all monies paid by the Longterm Global Capital Ltd, Lakeside Mews Ltd, Mr. Patrick Akinkotu, and Mrs. Oluyinka Akinkotu shall be refunded in full.

 

However, it was subsequently discovered, that an entirely different investor letter for private placement was prepared and presented to SEC for clearance and registration and/or approval by Stanbic IBTC Bank Plc. and Starcomms Plc. in conjunction with a co-issuing house, Chapel Hill Advisory Partners Ltd in respect of the same private placement without informing Longterm Global Capital Ltd, Lakeside Mews Ltd, Mr. Patrick Akinkotu, and Mrs. Oluyinka Akinkotu, and on the basis of the new offer documents, which were cleared and registered by SEC for the same private placement the shares of Starcomms were sold to other investors.

 

Miffed with the turn of events, Longterm Global Capital Ltd, Lakeside Mews Ltd, Mr. Patrick Akinkotu, and Mrs. Oluyinka Akinkotu instituted an action at the Federal High Court Lagos Division claiming that they were misled into buying the shares of Starcomms Plc. by the misrepresentation and non disclosure by Stanbic IBTC Bank Plc. According to them, if they had known of the existence of the other offer document presented to and approved by SEC, they would not have proceeded with the purchase of the shares which they claim have become worthless or worth much less than what they paid for them.

 

At the close of evidence, the parties filed their respective final written addresses, the trial Court Coram: J. T. Tsoho J. delivered judgment in favour of the Longterm Global Capital Ltd, Lakeside Mews Ltd, Mr. Patrick Akinkotu, and Mrs. Oluyinka Akinkotu in which the sale of 100,000,000 units of share in Starcomms Plc. to them through Stanbic IBTC Bank Plc. was set aside and an order was made against Starcomms Plc and Stanbic IBTC Bank Plc. jointly and severally to refund to Longterm Global Capital Ltd, Lakeside Mews Ltd, Mr. Patrick Akinkotu, and Mrs. Oluyinka Akinkotu the sum of N1.3 Billion paid for the said 100,000,000 shares. They were also granted the relief for pre-judgment interest.

 

Dissatisfied with the judgment of the trial Court, Stanbic IBTC Bank Plc. appealed to the Lagos Division of the Court of Appeal Coram: MOHAMMED LAWAL GARBA, J.C.A., BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment), and JAMILU YAMMAMA TUKUR, J.C.A.

 

 

ISSUES FOR DETERMINATION

 

 

 

The Court determined the appeal on the following issues:

 

“1. Whether the 2nd – 4th Respondents have the requisite locus standi to institute and maintain the suit against the Appellant and the 5th Respondent by reason of whether they had sold or merely consolidated their 75 million units of shares by the 5th Respondent?

 

  1. Whether in the entire circumstances of this appeal, taking into consideration the pleadings, evidence and the applicable principles of law, the 1st – 4th Respondents were bad investors being ‘impari delicto’ in any irregularity in the purchase by them of the 100 million units of shares in the 5th Respondent through the Appellant or whether the 1st – 4th Respondents were genuine investors who were misled by the misrepresentation of the Appellant into purchasing the 100 million shares in the 5th Respondent on the basis of Exhibit A?

 

  1. Whether the Court below was right when it held that the 1st – 4th Respondent made out their case and were thus entitled to judgment, including the relief of pre-judgment interest against the Appellant and the 5th Respondent.”

 

DECISION

 

 

 

On the whole, the appeal was unanimously dismissed for lacking grossly in merit. The judgment of J. T. Tsoho J. was affirmed.

 

 

 

RATIO DECIDENDI

 

 

CONTRACT – BINDING CONTRACT: What constitutes a binding contract

“In law, to constitute a binding contract between parties, there must be a meeting of the mind often referred to as consensus ad idem. The mutual consent relates to offer and acceptance. While an offer is the expression by a party of readiness to contract on the terms specified by him by which if accepted by the offeree gives rise to a binding contract, the offer only matures into a contract where the offeree signifies a clear and unequivocal intention to accept the offer. An offer can be accepted in such a manner as may be implied, such as doing an act which the person expecting acceptance wants done. On the other hand, an invitation to treat is simply the first step in negotiations between the parties to a contract. It may or may not lead to a definite offer being made by one of the parties to the other in the negotiations. In law therefore, an invitation to treat is thus not an agreement or contract. See Neka BBB Manufacturing Co. Ltd V. ACB Ltd (2004) 2 NWLR (PT. 858) 521. See also Unitab Nigeria Ltd V. Engr. Oyelola & Anor (2005) All FWLR (Pt. 286) 824 @ pp. 829-830; Okugbule & Anor V. Oyegbola & Ors (1990) 4 NWLR (pt. 147) 723; See also Afolabi V. Polymera Industries Ltd (1967) 1 All NLR 144; Nneji v. Zakhem Construction Nig. Ltd (2006) 12 NWLR (Pt. 994) 297; BFI Group Corporation V. Bureau of Public Enterprises (2012) LPELR-9339 (SC).

 

However, in whatever form a contract takes the terms as ad idem between the parties must be shown coupled with an intention to create a legal relationship between the parties backed by offer, acceptance and consideration. Once these elements are present, whether oral or written or by conduct of the parties, the law is that such parties to a contract duly entered by them are bound by the terms of their contract. See Nwankwo V. E.D.U.S.U.A (2007) 5 NWLR (Pt. 1024) 377 @ p. 410. See also Larmie V. D.P.M.S Ltd (2005) 18 NWLR (Pt. 985) 438; Nika Fishing Co Ltd V. Lavina Corp (2008) 16 NWLR (pt. 1114) 509; Bilante Inter’l Ltd V. MDXC (2011) 15 NWLR (Pt. 1270) 407 @ p. 436.” Per GEORGEWILL, J.C.A. (Pp. 86-88, Paras. D-B).

 

 

CONTRACT – ILLEGAL/VOID CONTRACT: Whether a party who has benefitted from a contract can resile from his obligation under such contract on the pretext of illegality

“…I shall pause to consider, albeit briefly, the issue of impari delicto as it touches on the parties if any. I am aware that the law, though not about morality of what is right or wrong, but still, never, allows itself to be used as an engine of fraud by one party against the other, particularly in a Court of law which is as well a Court of justice and equity. It is also true in law that a party would not be allowed to enter into a transaction with the full knowledge of its irregularity, take the benefit and then turn round to repudiate the transaction. See the evergreen words of Sir Jessel in his cerebral work: The Golden Age of Laisser Faire, citing Printing & Numerical Registering C. V. Sampson 1875 LR 19 EQ @ P. 485, where he aptly stated inter alia thus:

 

“If there is one thing more than another which public policy requires, is that men of full age and competent understanding shall have the utmost liberty of contracting and that their contracts, when entered into freely and voluntarily, shall be held sacred and shall be enforced by Courts of justice”.

 

It is also true in law parties to an illegal contract cannot seek any remedy over such illegal contract in Court, yet in law no one can be allowed in good conscience and in equity, to benefit from his own wrong and resile from a contract after taking the benefit therefrom. In law therefore, when parties to a transaction are both at fault rendering the transaction irregular or faulty, it is said that the condition of the Defendant is better in that Claimant who is also in fault would stand no better chance in repudiating the transaction, which though found or turned out to be irregular, he was also in fault. This is buttressed by the Latin maxim: ‘in pari delicto potion est condition defendant’. See Ukejianya V. Uchendu (1950) 13 WACA 45: Ekpenyong V. Nyong (1975) 2 SC 71; Abubakri V. Smith (1975) 6 SC 31, Oyegoke V. Iriguna (2001) FWLR (Pt. 75) 448 @ p. 451; Ibrahim V. Osim (1988) 3 NWLR (Pt. 82) 257 @ p. 278; Oilfield Supply Centre Ltd V. Lloyd Johnson (1987) 2 NWLR (Pt. 58) 625); Pan Bisbilder (Nig) Ltd V. FBN Ltd (2000) 1 NWLR (Pt. 642) 684 @ p. 695.” Per GEORGEWILL, J.C.A. (Pp. 101-102, Paras. A-F).

 

 

CASE LAW – FOREIGN DECISION: Binding effect of foreign decisions on Nigerian Courts

“My Lords, as I bring my consideration of issue two to a close, I observe that a lot of hair splitting initially took place both in ground 4 of the grounds of appeal and under issue three in the Appellant’s amended brief on the refusal or failure of the Court below to follow the decision of the United States District Court of Ohio in the Pharoah’s case so much so that it formed both a ground of appeal and part of an issue for determination. Happily, upon being confronted by the unassailable submission in the 1st -4th Respondents brief, as to the status of foreign decision on Nigerian Courts, the Appellant’s counsel had, commendably, beaten a retreat to concede that at best a foreign decision is persuasive and not binding on Nigerian Courts, more so when the decision relied upon was a decision of a High Court equivalent in status to the Court below. They are indeed without any exception merely persuasive and authorities on this position of the law are legion! In Olafisoye V. FRN (2004) 4 NWLR (Pt. 864) 580, Niki Tobi JSC (God bless his soul) had emphatically held inter alia thus:

 

“Decisions of Foreign Countries are merely of persuasive authority. This Court will certainly allow itself to be persuaded in appropriate cases but this Court will not stray away from its course of interpreting the Nigerian Constitution by resorting to foreign decisions which were decided strictly in the context of their Constitution and which are not similar to ours”.

 

See also Okon V. The State (1988) 1 NWLR (Pt. 69) 172 @ p. 180, where Nnemeka-Agu, JSC had stated inter alia thus:

 

”It is well to remember not only that a foreign decision should at best be of persuasive authority in a Nigerian Court but also that before it can even qualify as such, the legislation, substantive or adjectival, upon which it was based must be in pari material with our own. It is dangerous to follow a foreign decision simply because its wording approximates to our own. Nigerian Courts are obliged to give Nigerian Legislation its natural and ordinary meaning, taking into account our own sociological circumstances as well as other factors which form the background of our Local Legislation in question. A ‘Copy-Cart’ transportation of an English decision may in some circumstance turn out to be inimical to justice in our own Courts”.

 

See also Adetoun Oladeji (Nig) Ltd V. Nigerian Breweries PLC (2007) LPELR 160 (SC) Dada V. The State (1977) NCLR 135; Eliochin Nig. Ltd. V. Mbadiwe (1986) 1 NWLR (Pt. 14) 47; Nigerian National Supply Co. Ltd V. Alhaji Hamajode Sabana Co. Ltd (No 3) (1988) 2 NWLR (Pt. 74) 23: Senator Adesanya V. President of the Federal Republic of Nigeria (1981) 5 SC 112; Yahaya V. State (2002) 3 NWLR (Pt. 754) 289.” Per GEORGEWILL, J.C.A. (Pp. 107-109, Paras. B-D).

 

 

EVIDENCE – CROSS-EXAMINATION: Effect of evidence elicited during cross-examination but not on facts pleaded

“In law, evidence elicited under cross examination but not on facts pleaded does not enjoy a higher status than evidence in chief given on facts not pleaded merely because it was obtained under cross examination as they both go to no issue. Thus, it is only where the evidence elicited under cross examination is on facts pleaded either by the party being cross examined or by the party cross examining that such evidence is good evidence for the cross examining party if it is in support of his case. See Daggash V. Bulama (2004) 14 NWLR (Pt. 892) 144 @ p. 241. See also Ofem & Anor V. Ewa & Ors (2012) LPELR- 785 (CA); Bamgboye & Ors V. Olarewaju (1991) 4 NWLR (Pt. 184) 132 @ p. 155; Gaji & Ors V. Paye (2003) 8 NWLR (Pt. 825) 583.” Per GEORGEWILL, J.C.A. (Pp. 49-50, Paras. F-D).

 

 

EVIDENCE – PROOF: What a party alleging fraudulent misrepresentation must prove

“In law to prove misrepresentation, the party so alleging must plead and prove the following elements constituting fraudulent misrepresentation, namely the representation must be a statement of existing facts; the representation must be material and unambiguous; and the representee must show that he has acted in reliance on the misrepresentation. It is thus important to note that in order to succeed in an allegation of fraudulent misrepresentation, the party so alleging and who carries the burden of proving that these essential elements of fraudulent misrepresentation must faithfully on the balance of probability of preponderance of evidence discharge this burden to the satisfaction of the Court failing, which his claim must fail. See Afegbai V. AG Edo State (2001) 14 NWLR (Pt. 733) 435 @ p. 445. See Section 131(2) Evidence Act.” Per GEORGEWILL, J.C.A. (P. 89, Paras. A-E).

 

 

JUDGMENT AND ORDER – AWARD OF INTEREST: Position of the law as regards award of pre-judgment interest

“The law on pre-judgment interest is that it is to be awarded where there is an agreement for payment of interest or under mercantile custom or under principle of equity, as in breach of fiduciary duty. In all such cases the law is that pre-judgment interest is as of right. The Appellant is no doubt a licensed Commercial Bank and thus bound by its trade custom to give interest on money lodged with it. The law requires a person claiming such right to pre-judgment interest to so plead and prove at the trial. In law generally the Courts have the power to award post-judgment interest but not pre-judgment interest since pre-judgment interest which must be based on pleadings and proof by the party so claiming entitlement to it save if it is part of the mercantile custom of the transaction involving the parties.

 

In all therefore, it is never granted as of course, but must either be part of the contemplation of the parties by virtue of their contract terms or mercantile custom of fiduciary duty or it is specifically pleaded and proved. In Ferrero & Company Ltd. V. Henkel Chemicals Nigeria Ltd. (2011) LPELR – 12 (SC). His Lordship, Onnoghen, JSC (as he then was, now CJN) had expatiated on the rationale behind this principle of law inter alia thus:

 

“It follows that before a party can claim pre-judgment interest, he has to plead not only his entitlement to the interest but the basis of the entitlement either by Statute or contract/agreement between the parties, or mercantile custom or principle of equity, such as breach of fiduciary relationship. It is not for the Court to speculate or conjecture or assume the facts relevant to the claim. The relevant facts must be pleaded, as fact not pleaded goes to no issue. In addition to the requirement of pleading the relevant facts, the Plaintiff must adduce evidence at the trial in proof of the relevant facts. Where there is no evidence in proof of the facts, then the pleadings are deemed abandoned.”

 

See also UBA Plc. V. Oranuba (2013) LPELR- 20692 (CA). See also Hausa V. FBN Plc (2000) 9 NWLR (Pt. 671) 64; Ekwunife V. Wayne W/A Ltd (1989) NWLR (Pt. 122) 422: Hinma Merchant Ltd V. Alhaji Inuwa Audu (1996) 5 NWLR (Pt. 347) 667 @ pp. 676-677; Stabilini Visinoni Ltd V. Metalum Ltd. (2007) LPELR-8661 (CA) UBN Ltd V. Salami (1998) 3 NWLR (Pt. 538) 347: Idakula V. Richards (2000) FWLR (Pt. 14) 2439; Jallco Ltd. V. Owoniboys Tech Serv. Ltd. (1995) 4 NWLR (Pt. 391) 534 @ p. 550; Petgas Resources Ltd. V. Louts N. Mbanefo (2007) 6 NWLR (Pt. 1031) 545 @ p. 549; Consolidated Resources Limited V. Abofar Ventures Nigeria Limited (2007) 6 NWLR (pt. 1030) 225.” Per GEORGEWILL, J.C.A. (Pp. 120-122, Paras. B-D).

 

 

CONTRACT – WAIVER IN CONTRACT: Principle of waiver

“My lords, in law the concept of waiver is one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both. Thus, if one party by his conduct leads another to believe that the strict rights arising under contract between himself and another will not be insisted upon, intending that the other person should act on that belief and does not act on it, then the first party has waived his right and will not afterwards be allowed to insist on the strict rights when it will be inequitable for him so to do. In Nigerian Bank of Commerce and Industry v Integrated Gas (Nigeria) Limited (2005) 4 NWLR (Pt. 916) @ 642-643, the Supreme Court pronounced with finality on this issue inter alia thus:

 

“If one party by his conduct leads another to believe that the strict rights arising under the contract will not be insisted upon, intending that the other should act on that belief, and he does act on it, then the first party will not afterwards be allowed to insist on the strict right when it will be inequalities for him to do so. Thus where the defendant relied upon the failure of the plaintiff to perform a condition of the contract as to the precise time or mode of performance fixed by the contract as a ground for cancelling or repudiating the contract or as justifying his own refusal to perform his own obligation. The plaintiff may reply that the defendant has waived his right to insist that the contract should be or have been performed according to its original tenor. Waiver is not a cause of action, but a man may be debarred by the doctrine of waiver from asserting that an original condition precedent is still operative and binding waiver may be oral or written or inferred form conduct.”

 

See also United Calabar & Co V. Elder Dempster Lines Ltd (1972) All NLR 244; Tsvetan, Dimitrov V. Multichoice Nigeria Ltd (2005) 13 NWLR (Pt. 943) 391; Ariori V. Elemo (1983) 1 SCNLR: Total Nigeria Plc V. Chief Elijah Omoniyi Ajayi (2004) 3 NWLR (Pt. 869) @ pp. 285-286.

 

In Nigeria Universal Bank Ltd v. Samba Petroleum Company Ltd (2006) 12 NWLR (Pt. 993) @ p. 122, it was reiterated inter alia thus:

 

“Waiver carries some element of abandonment of a known legal right. By his conduct the person has given impression that he is not ready to pursue his legal right in the matter. He may not say so in specific words. He may not say so at all. But once his conduct shows that trend, a Court of Law will hold that he has waived his right.”

 

See also Prince Sikiru Adebayo Sobamowo V. Prince Alhaji Waheed Elemuren (2008) 11 NWLR (PT. 1097) @ 31; Nigeria Bank of Commerce and Industry V. Integrated Gas (Nigeria) Ltd (2005) 4 NWLR (Pt. 916) @ 642-643. See B. Stabilin & Co. Ltd V. Nwabueze Obasi (1997) 9 NWLR (Pt. 520) 293 @ p. 305. See also Bioku V. Light Machine (1986) 5 NWLR (Pt. 39) 42: Udochukwu V. Ngene (1992) 8 NWLR (Pt. 261) 565.

 

In Guinness (Nig.) Plc V. Onegbadan (2012) 15 NWLR (Pt. 1322) 33 @ p. 50, it was also held inter alia thus:

 

“It is trite law that a person who is not under legal disability should be the best judge of his own interest. Where he had full knowledge of his rights, interest, benefits or profits conferred upon him by statute or accorded to him under a statute and intentionally yet interestingly decided to give up all or some of these statutory rights, he therefore cannot be heard to complain afterwards.” Per GEORGEWILL, J.C.A. (Pp. 93-96, Paras. A-A).

 

 

OTHER AUTHORITIES

 

 

AKEREDOLU v. ABRAHAM & ORS  (2018) LPELR-44067(SC)

Applicable Area: Civil Procedure

 

 

 

RATIO DECIDENDI

 

 

INTERPRETATION OF STATUTE – ORDER 6 RULE 5(B) OF THE FEDERAL HIGH COURT (CIVIL PROCURE) RULES, 2009: Interpretation of Order 6 Rule 5(b) of the Federal High Court (Civil Procure) Rules, 2009 as regards whether substituted service can be effected by delivery to either a natural or an artificial person

“I shall now consider issue four which is issue one in the 1st respondent’s brief. It is basically whether the lower Court was right in the interpretation it gave to Order 6 Rule 5(b) of the Federal High Court (Civil Procedure) Rules 2009 which led to the failure of the lower Court to set aside the order of the trial Court for substituted service and the service based on same.

 

The said Order 6 Rule 5[b] of the Federal High Court (Civil Procedure) Rules 2009 provides:

 

“5. Where it appears to the Court (either after or without an attempt at personal service) that for any personal service cannot be conveniently effected, the Court may order that service be effected either –

 

(a) …

 

(b) by delivery of the document to some person being an agent of the person to be served, or to some other person, on it being proved that there is reasonable probability that the document would in the ordinary course, through that agent or other person, come to the knowledge of the person to be served.”

 

The contention of the appellant is that from the rule of Court reproduced above, a Court can only order that substituted service be effected by delivery of the documents to some person being an agent of the person to be served or to some other person. According to learned Senior counsel for the appellant, a careful reading of Rule 5[b] should leave no one in doubt that an applicant for substituted service will need to indicate in his application that the person the process will be delivered to is an agent of the person to be served and if he is not an agent but some other person, who may be for instance, the secretary, clerk, boss, friend or brother of the person to be served. That indicating that other person, the process will be delivered to, will enable the Court to form an opinion as to whether there is reasonable probability that the document would in the ordinary course come to the knowledge of the person to be served. That the rule fixes the document to an identifiable individual without any need to put his name in the affidavit.

 

Relying on some unreported cases of this Court and the case of Eimskip Ltd v Exquisite Ind. Ltd (2003) 4 NWLR (pt 809) 88, learned Senior counsel submitted that the application of the 1st Respondent did not pray for the originating process to be delivered to an agent of the appellant or some other person within the meaning of Order 6 Rule 5(b) aforesaid. That the failure of the lower Court to follow the decision of the Supreme Court in Eimskip Ltd v Exquisite Ind. Ltd (supra) led to the erroneous decision of the lower Court to align with the trial Court by holding that the request to serve through the address of the National Secretariat of All Progressives Congress was in compliance with Order 6 Rule 5(b) of the Rules of Court. According to him, notwithstanding that the originating process was never delivered to the appellant by the National Secretariat of the All Progressives congress through which the originating process was to be served according to the order of the trial Court, but was sent to one Ayodele Akinsanya who thereafter sent it to the appellant the Court below failed to hold that the purported service was bad in law and that the same ought to be set aside. He urged the Court to resolve this issue in favour of the appellant.

 

In response, the learned SAN for the 1st Respondent submitted that the grant of an order for substituted service is an exercise of discretion by a Court and the Court is given wide powers to do justice by making an order with the primary aim of ensuring that the relevant party is served with the Court process. He opined that being an exercise of discretionary power, the Court has a duty to ensure that the interest of justice is held above all without allowing technicality to becloud the process, relying on First Bank of Nig Plc & Anor v Maiwada & Ors (2012) LPELR – 2041 (SC).

 

The learned Silk argued that from the wording of the Rule, it is sufficient if the Court is satisfied that the method of substituted service would suffice to notify the party to be served of the processes so served referring to paragraphs 5 – 8 of appellant’s affidavit, he submitted that the processes served pursuant to the order of the Trial Court came to the knowledge of the Appellant in this case since the object of service is to give notice of the pending matter, relying on Okoye v Centre Point Merchant Bank Ltd (2008) All FWLR (pt 441) 810. That the law is moving towards substantial justice and not technicality. He relies on Adeyemi v The State (2015) All FWLR (pt 790) 1201. He urged the Court to resolve this matter against the appellant.

 

I have already set out the said Order 6 Rule 5(b) of the Federal High Court (Civil Procedure) Rules 2009. The learned Trial Judge made the following interpretation to the said Rule. That is to say:

 

“Secondly, although Rule 5(b) of Order 6 contemplates the Court ordering the substituted service on a person being an agent of the person to be served, to some other person, I have gone through the entire Rules of Court and have not seen any provision limiting this role of agent or some other person who can receive a process on behalf of a person to be served, only to natural persons as opposed to artificial persons. In the absence of such restrictions, I am inclined to go with the general principle that this can cover both natural and artificial persons. In the wise, service “through the National Secretariat of the All Progressives Congress” as was sought and obtained and indeed served, satisfies the requirement of Order 6 Rule 5(b) of the Rules of Court if you construe the provisions in a teleological way.” See page 261 of the Record of Appeal.

 

The lower Court stated at page 443 of the record on the issue that:

 

“….the Appellant was fully aware of the action against him and instructed his Solicitors to take appropriate steps. I hold the view therefore that the Trial Court’s exercise of discretion did not occasion any miscarriage of justice at all and to hold otherwise would amount to a very narrow construction of the provisions of Order 6 Rule 5(b) of the Rules of the trial Court.”

 

Without much ado, I find it extremely very easy to agree with the views expressed by both the learned Trial Judge and the Court below in the interpretation accorded Order 6 Rule 5(b) of the Federal High Court (Civil Procedure) Rules 2009. In Okoye v Centre Point Merchant Bank Ltd (2008) All FWLR (pt 441) 810, this Court stated clearly that the object of all types of services of Court processes, whether personal or substituted, is to give notice to the other party on whom service is to be effected so that he might be aware of and be able to resist if he may, that which is sought against him. In this case, this objective of service was obtained as appellant was successfully served and made aware of the pending action.

 

In paragraphs 5, 6, 7, and 8 of the affidavit deposed to by one Ayo Akinsanya (a legal Practitioner in the law firm of the Appellant as deposed to in paragraph 11 of the same affidavit) in support of the appellant’s application before the Trial Court for the setting aside of the Order of substituted service, it was clearly stated as follows:

 

“5. Based on the Order, the plaintiff/respondent on 18th October, 2016 caused to be served at the National Secretariat of the 1st respondent at 40, Blantyre Street, Wuse 11, Abuja, the originating summons, motion on notice for interlocutory injunction and motion on notice for abridgment of time meant for the defendant/appellant

 

  1. On the same October, 2016, the National Secretariat of the 1st Respondent delivered the processes to me in my office at the 5th floor, NICON Insurance Plaza, Central Area, Abuja.

 

  1. I immediately called the 2nd defendant/applicant who was then in Owo Ondo State on phone to tell him that the process mentioned above were delivered to me in my office at the above address, by the 1th defendant’s staff, with a request to Pass them to him.

 

  1. The 2nd defendant/applicant then directed that I should pass the processes to Chief Akin OlujInmi, CON, SAN his solicitor, to take steps he considers appropriate as far as the case concerns him.”

 

Earlier in this judgment, I held that the learned Trial Judge had the jurisdiction to make the order of substituted service on the appellant. The said Order was thus executed and the appellant notified of the suit against him and he took steps to defend the suit. I am aware that Order 6 Rules (b) provides that such substituted service be done through “a person being an agent of the person to be served or to some other Person,” For the avoidance of doubt, the word “person” is not defined under the rules. But by Section 18(1) of the Interpretation Act, Cap 192 Laws of the Federation of Nigeria 1990, a “person” is defined as including anybody or persons corporate and incorporate. The All Progressives Congress, the political party of the Appellant at its National Headquarters Abuja, qualifies as “some other person” as used in the Rules. It is obvious that a political party is an artificial person and operates through natural persons. As the appellant was a governorship candidate of the APC, it was reasonable for the learned trial Judge to believe and exercise his discretion in favour of granting the application through the National Secretariat of the Party. SeeUniversity of Jos v Ikegwuoha (2013) 9 NWLR (pt 1360) 478, Atake v Afejuku (1994) 9 NWLR (pt 368) 379, Ibrahim v Judicial Service Committee, Kaduna State & Anor (1998) 14 NWLR (Pt 584) 1.

 

The phrase “come to the knowledge of the person to be served” in Rule 5[b] gives it a liberal meaning. That is to say, where the process is made available at the office or residence of the defendant whether he is present or not and he is so informed as was done in this case, the process has come to his knowledge and that satisfies Order 6 Rule 5[b) of the Federal High Court (Civil Procedure) Rules. To hold otherwise could be to dignify technicality above doing substantial justice. Any interpretation by our Courts which seeks to emasculate should be avoided as it would not serve the interest of justice and would tend to confine the citizenry into a legal container. It should be avoided at all legitimate costs. See First Bank of Nig. Plc & Anor v Maiwada & Ors (supra). Moreso, the appellant who had timeously become aware of the suit at the trial Court, has not shown what miscarriage of justice he has suffered.

 

This Court in Adeyemi v The State (2015) All FWLR (pt 790) 1201 at1271 – 1281 paragraphs D – H, referring with approval to the decision in NIPOL Ltd v Bioku Investment & Property Co Ltd (1992) 3 NWLR (pt 232) 727 at 753, held thus:

 

“Technicality in the administration of justice shuts out Justice. A man denied justice on any ground, much less a technical ground, grudges the administration of justice, It is therefore better to have a case heard and determined on merit than to leave the Court with a shield of ‘victory’ obtained on mere technicalities.” Only recently this Court in Omisore v Aregbesola (2015) All FWLR (pt 813) 1673 at 1712 paragraphs B – C per Nweze, JSC held as follows:

 

“Now, it is no longer in doubt that this Court and indeed all Courts have made a clean sweep of “the picture of the law and its technical rules triumphant” Aliu Bello & Ors v Attorney General, Oyo State (1986) 5 NWLR (pt 45) 828, 866. Let me explain. By its current mood, it is safe to assert that this Court has firmly and irreversibly spurned the old practice where the temple of Justice was converted into a forensic abattoir where legal practitioners, employing such tools of their trade like “the whirling of technicalities”, daily butchered substantive issues in Court in their “fencing game in which parties engage themselves in an exercise of outsmarting each other…” Afolabi v Adekunle (1983) 2 SCNLR 14,150. Those days are gone; gone for good.”

 

I agree entirely. The interpretation given Order 6 Rule 5[b) of the Rules of the trial Court by that Court as affirmed by the lower Court cannot be faulted. Any attempt to give it another interpretation or meaning would be tantamount to exhuming the already dead and buried issue of technicality.”Per OKORO, J.S.C. (Pp. 41-52, Paras. C-A).

 

 

 

 

ADOBA v. STATE (2018) LPELR-44065(SC)

 

Applicable Area: Criminal Law and Procedure

 

RATIO DECIDENDI

 

CRIMINAL LAW AND PROCEDURE – OFFENCE OF CONSPIRACY: Meaning of conspiracy; whether failure to prove a substantive offence would make conviction for conspiracy inappropriate

“Generally, conspiracy is an agreement between two or more persons to do an unlawful act, or to carry out a lawful act by unlawful means. This is however, a matter of inference to be deduced from certain criminal acts of the parties accused, which were done in pursuance of an apparent criminal purpose in common between them which are hardly ever confined to one place. Therefore, being a separate and distinct offence in itself, failure to prove a substantive offence does not make conviction for conspiracy inappropriate. It is independent of the actual offence conspired to commit. see; Kaza Vs. The State (2008) 5 SCM 70 (2008) 7 NWLR (pt.1085) 125; (2008) 1-6 SC 151; Balogun Vs. A.G Ogun State (2002) 2 SC (Pt.11) 89; (2002) 4 SCM 23; (2002) 2 SCNJ 196. Folorunsho Alufohai Vs. The State (2014) 12 SCM (Pt 2) 122; (2015) 3 NWLR (Pt.1445) 172; (2015) All FWLR Pt.765) 198.” Per ARIWOOLA, J.S.C. (Pp. 16-17, Paras. C-A).

 

 

CRIMINAL LAW AND PROCEDURE – CONVICTION FOR LESSER OFFENCE: Conditions to be fulfilled before an accused can be convicted for a lesser offence

“Relying on Section 11 of the Robbery and Firearms (Special Provisions) Act Cap R.11, LFN, 2004, the trial Court found that there was evidence before the Court, which he believed, that the appellant and his co-accused ordered the PW1 and others to lie down in their car in the course of the robbery operation, on the pain of severe danger to their persons for any act of defiance. Both PW1 and PW2 had no option but to obey the order. The trial Court then found that the offence of robbery was established. Hence, even though the charge was armed robbery, the trial Court convicted the appellant and the co-accused for a lesser offence of robbery. The appeal by the appellant to the Court below was found unmeritorious and was accordingly dismissed. The conviction and sentence were affirmed. There is no doubt that the available evidence on record supported the prosecution’s case, that there was a robbery incident involving the appellant and the co-accused. The Court below rightly concurred on the findings of fact on this. However, it must be understood that for the Court to convict an accused for a lesser offence than the charge, the following conditions must be fulfilled. Firstly, the elements in the offence charged and those in the lesser offence for which the accused is convicted must be the same. Secondly, the evidence adduced and the facts found must be insufficient for the conviction in respect of the offence charged but at the same time support the lesser offence. See; Adebayo Adeyemi Vs The State (1991) 6 NWLR (Pt.195) 1; (1991) 7 SC (Pt.11); (1991) 7 SCNJ 131. In other words, it is trite law that before an accused can be convicted for a lesser offence than the one charged, the ingredients or elements of the offences charged and the lesser offence must be similar. Where there is no similarities in their elements or ingredients or circumstances of their commission, the Court may not be right in convicting for a lesser offence. And where it is done, such conviction will be liable to setting aside on appeal. See; The Nigerian Airforce Vs. Kamaldeen (2007) 7 NWLR (Pt.1032) 164; (2007) 164; (2007) 3 SCM 190; (2007) 3 SC (Pt.11) 131.

 

Robbery generally, is the illegal taking of property from the person of another or in the person’s presence by violence or intimidation. While armed robbery is robbery committed by a person carrying a dangerous weapon, regardless of whether the weapon is revealed or used. See; Akeem Agboola Vs. The State (2013) 11 NWLR (pt.1366) 619; (2013) 8 SCM 157; (2013) All FWLR (Pt.704) 139; Idowu Okanlawon Vs. The State (2015) 9 SCM 159.

 

In the same vein, by Section 11 of the Robbery and Firearms (Special Provisions) Act (supra), robbery is defined as follows:

 

“Stealing anything and at immediately before or after the time of stealing it, using, or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.”

 

It is clear on the record and as found by the trial Court, that the appellant and his co-accused stole the money of PW1 under threat and intimidation. The offence of robbery was therefore established. There is no doubt that the elements of the lesser offence of robbery is similar to that of the offence with which the accused were charged.” Per ARIWOOLA, J.S.C. (Pp. 21-24, Paras. C-A).

 

 

ILORI & ORS v. ISHOLA & ANOR (2018) LPELR-44063(SC)

 

Applicable Area: Land Law

 

 

RATIO DECIDENDI

 

 

CONVEYANCY LAW – DEED OF ASSIGNMENT: Whether a deed of assignment requires an attestation for it to be valid

“Learned counsel for the appellants has placed a lot of emphasis on the fact that the persons alleged to have attested to the signatures of the assignor and assignee did not do so in their presence in Ibadan but in Lagos. The Court below was correct when it held that a deed of assignment does not require attestation for its validity. In Awojugbagbe Light Industries Ltd. Vs. Chinukwe (supra) at page 408 A – B, it was held that unlike a contract which is not binding on the parties until they have exchanged their parts, a deed is binding on its maker, even though the parts have not been exchanged, so long as it has been signed, sealed and delivered. It was further held that “delivery” in connection with a deed does not mean “handed over” to the other side, but means delivered in the sense that an act is done so as to evince an intention to be bound. In the instant case, the unchallenged evidence of the 1st respondent was that in addition to signing Exhibit 2, which signature has not been shown to be a forgery, Festus Ilori also handed over to him his Certificate of Occupancy in respect of the property, thereby signifying his intention to be bound by the agreement.”Per KEKERE-EKUN, J.S.C. (Pp. 37-38, Paras. E-E).

 

 

LAND LAW – GOVERNOR’S CONSENT: Status and effect of preparing a land agreement in anticipation of obtaining Governor’s consent in a land transaction

“Sections 22 (1) and 26 of the Land Use Act provide;

 

  1. (1) It shall not be lawful for the holder of a statutory right of Occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained.

 

  1. Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void.

 

It has been held by this Court that Section 22 (1) of the Land Use Act, 1978 does not prohibit the holder of a statutory right of occupancy from entering into some form of negotiation which may end with a written agreement for presentation to the Governor for his consent, so long as such written agreement is understood and entered into “subject to the consent of the Governor”. See: Awojugbagbe Light Ind. Vs. Chinukwe (supra) at 435 – 436 G – A. It was also held that there will be no contravention of Section 22 (1) by the mere fact that such agreement was executed before being forwarded to the Governor for his consent. As rightly observed by the Court below, it is clearly stated in the 4th recital in Exhibit 2 that the agreement was entered into subject to the Governor’s consent. The deposit of the document with the bank as security for a loan merely created an equitable mortgage. See: Yaro Vs. Arewa Const. Ltd. (2007) 17 NWLR (pt. 1063) 333; Usenfowokan vs. Idowu & Anor. (1975) LPELR-3426 (SC) 1 @ 8 – 11. This explains the effort of the bank, as stated by DW4, to obtain the Governor’s consent on Sule Raji’s behalf, in order to properly secure its interest. PW3, a Lands Officer in the Governor’s office, who testified on behalf of the appellants and who processed the application for the Governor’s consent to Exhibit 2, testified that all the prerequisites for its grant were met. Under cross examination he stated that his office was notified by an affidavit (Exhibit 3J) deposed to by Sule Raji, that at the time of processing the application, Festus Ilori was dead. He stated that notwithstanding the demise of one of the parties, it would not halt the processing of the application, as the office had been officially notified. I agree with the Court below that this is an admission against the appellants’ interest and quite damaging to their case. The evidence of their own witness was that all necessary requirements for obtaining the Governor’s consent to the agreement between the parties had been fulfilled. It does not then lie in their mouths to contend that the Governor’s consent was not validly obtained. The lower Court at pages 404 to 405 of the record held thus:

 

“Late Ilori undertook to obtain the consent of the Governor. He benefitted from the transaction, but failed or neglected to do so before his death. It is not open to the representatives of his estate to seek to nullify the transaction on the basis of non-procurement of the Governor’s consent or invalid or irregular consent of the Governor.

 

The late Ilori, as the holder of the certificate of occupancy had the duty to apply for the Governor’s consent. It is morally despicable for a person who has benefitted from an agreement to then turn round to allege that the agreement is null and void. See: Adetuyi Vs. Agbojo (1997) 1 NWLR (Pt. 484) 705; Ibekwe Vs. Maduka (1995) 4 NWLR (Pt. 392) 716; Solanke Vs Abed (1962) WRNLR 92; Adedeji Vs. National Bank (1989) 1 NWLR (Pt 96) 212.”

 

I agree entirely with their Lordships. The late Festus Ilori, received the sum of N165,000.00 from Sule Raji, as consideration for the assignment of the property in dispute, receipt of which was duly acknowledged in Exhibit 2. He had thus derived some benefit from the agreement. I agree with their Lordships that as a matter of public policy, it is unconscionable for the appellants to contend that the agreement is unlawful or to contend that the Governor’s consent was not lawfully obtained.”Per KEKERE-EKUN, J.S.C. (Pp. 39-43, Paras. D-A).

 

 

 

 

 

 

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