COA Cases: Meaning Of Admission

By Legalpedia

BGL PLC. & ORS v. FIRST BANK OF NIGERIA PLC

suit no: CA/B/194/2015

Legalpedia Electronic Citation: (2021) Legalpedia (CA) 11101

Areas Of Law:  

Action, Appeal, Court, Criminal Law And Procedure, Interpretation Of Statute, Law Of Contract, Law Of Evidence, Practice And Procedure, Words And Phrases.

Summary Of Facts:

By an offer letter, dated 30th August 2007, the Respondent, a financial/banking institution, granted a stock trading margin facility of N2 billion to the 3rd Appellant for the purpose of purchase of diversified stocks.

The facility was guaranteed by the 1st and 2nd Appellants; the latter being the alter ego of the former. The 3rd Appellant’s shares were pledged as security for the loan. The 3rd Appellant accepted the offer on 7th September 2007, inclusive of all the conditions attached to it.

One of the terms in the offer was that the Respondent reserved the right to dispose the pledged shares when their value fell below 130% collateral average and the 3rd Appellant was not willing to offer additional security to augment one up to the agreed amount.

The Appellants alleged the Respondent failed or neglected to dispose the pledged shares when it fell below the percentage cover of 130% on 17th June 2008, which caused the 3rd Appellant’s monetary losses and damages. Sequel to that, the Appellants beseeched the Federal High Court, via a writ of summons for recovery of the loan.

In reaction, the Respondent joined issue with the Appellants and denied liability by filing a statement of defence and counter-claim.

The Respondent asserted that after the 3rd Appellant defaulted in payment of the facility, it applied to it and had it restructured, based on an offer letter of 29th March 2011, which created a new loan facility with new terms and conditions.

The Appellants failed to meet their obligations under the new loan and became indebted to the Respondent.

At the close of trial, the lower court dismissed the Appellants’ claim and granted the Respondent’s counter-claim.

The Appellants were dissatisfied with the decision hence this appeal.

HELD:

Appeal Dismissed

ISSUES FOR DETERMINATION

Ø Did the Respondent have a contractual obligation and a duty of care to call in the stock trading margin facility granted to the 3rd Appellant and to sell all the shares that the 3rd Appellant had pledged as security for the said facility after the value of the shares fell below the agreed 130% value cover for the facility on 17th June, 2008?

Ø Are the Appellants entitled to the claims endorsed in the 2nd Amended Statement of Claim filed on 28th March, 2013?

Ø Is the Respondent entitled to the claims endorsed in its Counter-Claim in this suit?

RATIONES

EVALUATION OF DOCUMENTARY EVIDENCE – CONCURRENT JURISDICTION OF THE HIGH COURT AND APPELLATE COURT TO EVALUATE DOCUMENTARY EVIDENCE

“Interestingly, the case-law gives the courts the liberty to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this court and the lower court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagungu v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yorin (2011) 10 NWLR (Pt 1254) 135; Eyibio v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuraike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v. Okafor (2017) 11 NWLR (Pt. 1577); 410; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652); Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36; APC v. Marafa (2020) 6 NWLR (Pt. 1721) 383.”  PER O.F. OGBUINYA, J.C.A

CANON OF INTERPRETATION OF STATUTE – DUTY OF COURTS IN THE INTERPRETATION OF DOCUMENTS

“Nota bene, the law grants to the courts the unbridled licence to read a document holistically so as to reach and garner harmonious results of its content, see Ojokolobo v. Aremu (1987) 3 NWLR (Pt. 61) 377/(1987) SCNJ 98; Unilife Dev. Co. Ltd. v. Adeshigbin (2001) 4 NWLR (Pt. 707) 482; ACB v. Apubo (2001) 5 NWLR (Pt. 707) 482; Mbani v. Bosi (2006) 11 NWLR (Pt. 991) 400; Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573; Agbareh v. Minra (2008)2 NWLR (Pt. 1071) 378; Nigerian Army v. Aminu-Kano (2010) 5 NWLR (Pt, 1188) 429; BFI Group v. BPE (2012) 18 NWLR (Pt. 1332) 209; Julius Berger Nig. PLC. v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219. In addition, in construing a document, the court is enjoined by law to apply the literal rule as a canon of interpretation, id est, to accord the words employed therein their ordinary grammatical meaning without any embellishments, see UBN v. Ozigi (1994) 3 NWLR (Pt. 333) 385, UBN Ltd. v. Sax (Nig.) Ltd. (1994) 8 NWLR (Pt. 361) 150; Enilolobo v. N.P.D.C. Ltd. (2019) 18 NWLR (Pt. 1703) 168.”PER O.F. OGBUINYA, J.C.A

RESERVED POWER- MEANING OF RESERVED POWER

“It is a classic exemplification of a reserved power: “The legal right or authorization to act or not to act; a person’s or organization’s ability to alter, by act of will, the rights, duties, liabilities, or other legal relations either of that person or of another”, see Black’s Law Dictionary, Bryan A. Garner (ed.) et al 10th Edition (USA, Thomson Reuters, 2014) page 1358.” PER O.F. OGBUINYA, JCA

CONSTRUCTION OF WORDS IN A STATUTE – MODE OF CONSTRUING ‘AND’ WHEN USED IN A STATUTE

“In the mind of the law, the word “and” is construed as conjunctive, see Ndoma Egba v. Chukwuogor (2004) 6 NWLR (Pt. 869) 382; Luna v. C.O.P. (2018) 11 NWLR (Pt. 1630) 269.” PER O.F. OGBUINYA, J.C.A

CONDITION PRECEDENT – MEANING OF CONDITION PRECEDENT

“In the eyes of the law, a condition precedent is: “the one that delays the vesting of a right until the happening of an event”, see Atolagbe v. Awuni (1997) 9 NWLR (Pt. 525) 537 at 562, per Uwais, CJN; Niger Care Dev. Co. Ltd. v. ASWB (2008) 9 NWLR (Pt. 1093) 493: A-G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Jumbo United Co. Ltd. v. Leadway Ass. Co. Ltd. (2016) 15 NWLR (Pt. 1536) 439.” PER O.F. OGBUINYA, J.C.A

WAIVER – MEANING OF WAIVER

“Waiver denotes an intentional and voluntary surrender, relinquishment, dispensation, abandonment, extinguishment of known privilege or right by a party, who is waiving it, which, at his option, he could have insisted on, see Ariori v. Elemo (1983) 1 SC 13 at 22; Ayanwoko v. Okoye (2010) 5 NWLR (Pt. 1188) 497; Ugwuanyi v. NCON Ins. Plc (2013) 11 NWLR (Pt. 1366) 546; NBC PLC v. Ubani (2014) 4 NWLR (Pt. 1398) 421; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652) 163; Socio-Political Research Dev. Min, FCT (2019) 1 NWLR (Pt. 1653) 313; Mamonu v. Dikat (2019) 7 NWLR (Pt. 1672) 495; C & C.B. Dev. Co. Ltd. v. Min. E.H.O.U D (2019) 5 NWLR (Pt. 1666) 484.” PER O.F. OGBUINYA, J.C.A

WAIVER – WHETHER AN INDIVIDUAL MAY WAIVE HIS PERSONAL RIGHT

“In the Latin days of the law, waiver of personal right was encapsulated in the maxim: Quilibet potest renunciare juri pro se introducto- an individual may renounce a law made for his special benefit.” PER O.F. OGBUINYA, J.C.A

PROOF – MEANING OF PROOF

“Proof, in law, is a process by which the existence of facts is established to the satisfaction of the court, see section 121 of the Evidence Act, 2011; Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; Salau v. State (2019) 16 NWLR (Pt. 1699) 399. (Pt. 1372) 474; APC v. Karfi (2018) 6 NWLR (Pt. 1616) 479; Ojobo v Moro (2019) 17 NWLR (Pt. 1700) 166.” PER O.F. OGBUINYA, J.C.A

COURT – WHETHER THE COURT CAN GRANT RELIEFS NOT SOUGHT BY A PARTY

“The law, in its wisdom, imposes a bounden duty on a court to render to a party according to his proven claim(s).  The rationale behind this hallowed principle of law is not far to seek.  A court of law is not clothed with garment of a santa claus that dishes and dashes unsolicited award to recipients.  It will tantamount to ex-gratia award, which is liable to vacation by this court, if the lower court had proceeded, in the face of this right finding, to grant the appellants’ unproved reliefs. PER O.F. OGBUINYA, J.C.A

COUNTER-CLAIM –WHETHER A COUNTER-CLAIM IS A SEPARATE ACTION

“It is an elementary law, indeed properly propagated in our corpus juris, that a counter-claim is an independent and separate action triable with the main claim for reason of convenience. Like the main claim, it must be proved by the counter- claimant in order to earn the favour of the court, see Ogbonna v. A-G.., Imo State (1992) 1 NWLR (Pt. 220) 647; Nsetik & Ors. V. Muna & Ors. (2013) vol. 12 MJSC (Pt. 1)116; Anwoyi v. Shodeke (2006) 13 NWLR (Pt. 996) 34; Bilante int’l Ltd v. NDIC (2011)15 NWLR (Pt. 1270) 407; Esuwoye v. Bosere (2017)1 NWLR (Pt.1546) 256; Kolade v. Ogundokun (2017) 18 NWLR (Pt. 1596) 152; Atiba Iyalamu Savings & Loans Ltd. v. Suberu (2018) 13 NWLR (Pt. 1639) 387; Umar v. Geidam (2019) 1 NWLR (Pt. 1652) 29; Tyonex (Nig.) Ltd. v. Pfizer Ltd. (2020) 1 NWLR (Pt. 1704) 125.” PER O.F. OGBUINYA, J.C.A

CROSS-EXAMINATION – OBJECT OF CROSS-EXAMINATION

“There is no gainsaying the fact that in our adversarial system of adjudication, the object of cross-examination is to test the credibility of an opponent’s case.  It is meant to puncture and discredit the evidence-in-chief of a witness.  It has the potential to perforate an opponent’s case and enhance that of the cross-examiner.  It is used to test the veracity of a witness. It is the yardstick with which to measure the truth in evidence in chief of a witness. It affords the judex the sufficient opportunity to watch and assess the credibility and reliability of a witness by watching his demeanour in the witness box, see Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 466; Okuleye v. Adesanya (2014) 12 NWLR (Pt. 1422) 521; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; Udom v. Umana (No. 1) (2016) 12 NWLR (Pt. 1526) 179; Alfa v. Attai (2018) 5 NWLR (Pt. 1611) 59; MTN (Nig.) Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019) 9 NWLR (Pt. 1678) 427; Adama v. K.S.H.A. (2019) 16 NWLR (Pt. 1699) 501; Adeleke v. Oyetola (2020) 6 NWLR (Pt. 1721) 440; Tyonex (Nig.) Ltd. v. Pfizer Ltd. (2020) 1 NWLR (Pt. 1704) 125.

It has been described as a “noble art” which “constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party”, see Oforlete v. State (2000) 3 NSCQR 243 at 268 per Achike, JSC. Hence, any evidence elicited from the cross-fire of cross-examination, are, in the eyes of law, potent and run pari passu with the ones from evidence-in-chief, see Gaji v. Paye (2003) NWLR (Pt. 823) 583; Akomolafe v. Guardian Press Ltd. (2010) 3 NWLR (Pt. 1181) 338. They belong to the cross-examiner, see Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205.

As a matter of fact, the law views evidence procured from the heat of cross-examination as more reliable and compelling than the ones proffered in examination-in-chief, see Adeosun v. Gov., Ekiti State (2012) 9 NWLR (Pt. 1291) 581; Okuleye v. Adesanya (2014) 12 NWLR (Pt. 1422) 321. Indubitably, cross-examination occupies an Olympian position in our corpus juris especially in the adjectival law.” PER O.F. OGBUINYA, J.C.A

INFERENCE – MEANING OF INFERENCE –POWER OF THE COURT TO DRAW INFERENCES

“The evidence opens the gate of inference: “A conclusion reached by considering other facts and deducing a logical sequence from them,” see Muhammed v. State (2017) 13 NWLR (Pt. 1583) 386) at 420, per Augie, JSC. The law gives the courts the latitude to draw inferences, see Okoye v. Kpajie (1992) 2 SCNJ 290 reported as Okonkwo v. Kpajie (1992) 2 NWLR (Pt. 226) 633; Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; Adebayo v. PDP (2013) 17 NWLR (Pt. 1382); NNPC v. Roven Shipping Ltd. (20190 9 NWLR (Pt. 1676). I will reap from this unfettered liberty allotted to the court by the law”.  PER O.F. OGBUINYA, J.C.A

LOAN – DIFFERENCE BETWEEN LOAN AND INDEBTEDNESS

“Loan signifies a sum of money lent to a borrower with interest, see Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343.  Indebtedness implies a state of owing money, or something owed, or debt to another person, see Bebedos and Ventures Ltd. v. FBN Plc (2016) 4 NWLR (Pt. 1609) 241.” PER O.F. OGBUINYA, J.C.A

ADMISSION -MEANING OF ADMISSION

“Incontestably, in the sight of the law, admission connotes a statement, oral or documentary, made by a party which suggests an inference as to any fact in issue or relevant fact, see section 20 of the Evidence Act, 2011; UBA Plc. v. Jargaba (2007) 11 NWLR (Pt. 1045) 237; Oguanuhu v. Chiegboka (2013) 6 NWLR (Pt. 1351) 588.  It “is a concession or voluntary acknowledgement made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action”, see Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 558 per Fabiyi, JSC; UBA v. Jaraaba (2007) 31 NSCQR 144; N.B.C.I. v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Omisore v. Aregbesola(2015) 15 NWLR (Pt. 1482) 205; N.A.S. Ltd. v. UBA Plc. (2005) 14 NWLR (Pt. 945) 421. It is classified, in the stratification of evidence, as the best evidence against the party making it, see Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 133. It constitutes a concession against the interest of a party making it, see Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391. Hence, in the view of the law, an admitted fact does not need any proof, see Our Line v. S.C.C. Nig. Ltd. (2009) 7 SCNJ 358; Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497 542; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499; Orlanezi v. A.-G., Rivers State (2017) 6 NWLR (Pt. 1561) 224; Mba v. Mba (2018) 15 NWLR (Pt. 1641) 177; Adeokin Records v. M.C.S.N (Ltd/GTE) (2018) 15 NWLR (Pt. 1643) 550; N.R.M.A & FC v. Johnson (2019) 2 NWLR (1656) 247.” PER O.F. OGBUINYA, J.C.A

Statutes Referred To:

Evidence Act 2011
Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria