Power Of Appellate Court To Reframe, Modify Or Reject Parties Issues

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 8th day of July, 2022

Before Their Lordships

Olukayode Ariwoola (Ag. Chief Justice of Nigeria)

Uwani Musa Abba-Aji

Mohammed Lawal Garba

Adamu Jauro

Tijjani Abubakar

Justices, Supreme Court

SC/CV/1006/2020

Between

Polaris Bank Ltd … … … … Appellant

Formerly (Skye Bank Plc)

And

Forte Oil Plc… … … … … … Respondent

(Formerly African Petroleum Plc)

(Lead Judgement delivered by Honourable Tijjani Abubakar, JSC)

Facts

The Respondent was a customer of the Appellant with loan Account No. 0030015642617 (Multiple Facilities Account – “MFA”). The Respondent, who alleged wrongful, irregular and unethical manner by which its MFA was operated, commenced an action against the Appellant (as Defendant/Counterclaimant) at the Federal High Court. It prayed the court for the following, among others: (i) an Order directing the Appellant to credit the Respondent’s Account No. 0030015642617, with the Appellant, with the sum of N3,441,529,445.17K (Three billion, four hundred and forty-one million, five hundred and twenty-nine thousand four hundred and forty-five Naira, seventeen Kobo) representing the total sum of the unauthorised and wrongful charges, deductions and interest that would have accrued to the Respondent, had its instructions to the Appellant been carried out on its account; and (ii) An Order of perpetual injunction restraining the Appellant from any further unauthorised charges, deductions and/or withholding any sum of the Respondent’s Account No. 0030015642617.

The Appellant filed its defence and a Counterclaim, denying any wrongful or irregular operation of the Respondent’s account contrary to the banking practice and regulations. In its Counterclaim, the Appellant alleged that the Respondent was indebted to it in the total sum of N12,804,121,542.49K (Twelve billion, eight hundred and four million, one hundred and twenty-one thousand five hundred and forty-two Naira, forty-nine Kobo), being the sum afforded the Respondent vide multiple loan facilities in respect of Account No. 0030015642617. The Appellant also alleged that it paid a total sum of N11,623,537,500.00 (Eleven billion, six hundred and twenty-three million, five hundred and thirty-seven thousand, five hundred and thirty-seven thousand, five hundred Naira) being the value of 46,464,150 units of shares in the Respondent company underwritten by the Appellant.

Further, it was the Appellant’s position that the Respondent (i) defaulted in the repayment of the loan facility, despite repeated demands for payment by the Appellant, and (ii) failed to deliver up to the Appellant the 46,464,150 units of shares underwritten and paid for by the Appellant. While the Respondent refuted the allegations on the premise that it was not indebted to the Appellant, and that it did not act in an unlawful manner in the sale of the said shares as it acted in accordance with the Securities and Exchange Commission’s (“SEC”) directives in selling the shares, the Appellant insisted that the Respondent was indebted to it given the purported loan facilities, and that the sale of the said shares constituted an illegality.

At the conclusion of trial, the trial court granted the reliefs sought by the Respondent and dismissed the Appellant’s Counter-claim. The Appellant, who was aggrieved by the decision of the trial court, appealed to the Court of Appeal. At the Court of Appeal, the Appellant’s appeal was heard, determined and allowed in part. The appellate court set aside the award of the sum of N3,441,529,445.17K (three billion, four hundred and forty-one million, five hundred and twenty-nine thousand, four hundred and forty-five Naira, seventeen Kobo) claimed by the Respondent as excess interest and commission on turnover charges from the account of the Respondent, while resolving other issues against the Appellant.

Still not satisfied with the outcome of the appeal, the Appellant lodged a further appeal to the Supreme Court challenging the decision of the Court of Appeal. The Respondent filed a Preliminary Objection, challenging some grounds of the appeal. The Respondent also filed its Cross-appeal in respect of the monetary award in the sum of N3,441,529,445.17K (Three billion, four hundred and forty-one million, five hundred and twenty-nine thousand four hundred and forty-five Naira, seventeen Kobo), which was set aside by the Court of Appeal.

Issues for Determination

The Appellant raised seven issues for determination from its grounds, while the Respondent/Cross-appellant raised two issues for determination. The Appellant’s issues were thus:

1. Whether the lower court did not err and occasion a gross miscarriage of justice to the Appellant, when it jettisoned the Appellant’s issues 1-8 which are issues of law formulated from grounds of law contained in the Appellant’s appeal based upon a sole issue it reformulated from an omnibus ground of appeal contained in ground 9 of the Appellant’s Notice of Appeal.

2. Whether the lower court was right when it refused to apply and give effect to the provisions of Section 133 of the Evidence Act 2011 in respect of the facts and admission contained in the pleadings of the Respondent and the testimonies of its witnesses, PW1 & PW2 in respect of the sums of over N12.8 billion and N11.6 billion owed to the Appellant by the Respondent.

3. Whether the lower court did not infringe on the Appellant’s constitutionally guaranteed right to fair hearing, when it failed to consider the submission contained in the Appellant’s Reply Brief of Argument before arriving at its final judgement.

4. Whether the lower court’s judgement did not offend the principles of equity and justice and thereby occasion gross injustice to the Appellant, when it allowed the Respondent to keep and retain the sum of N24 Billion being monies due to the Appellant from loan facilities afforded to the Respondent and proceeds of the sale of 46,464,150 units of shares belonging to the Appellant, which were admittedly unpaid and unremitted to the Appellant by the Respondent.

5. Whether the lower court was right when it dismissed the Appellant’s Counter-claim, on the ground that the Respondent’s sale of the Appellant’s shares in the Respondent purportedly on the directive of the Securities and Exchange Commission was justified in law, and if this question is answered in the negative, whether the Appellant is entitled to either the underwritten shares unlawfully converted and sold by the Respondent or their value.

6. Whether the fact that the Respondent’s statements of account concerning the multiple facilities the Appellant granted the Respondent was not before the trial court, is a sufficient ground for the lower court to dismiss the Appellant’s Counter-claim as it relates to the Respondent’s indebtedness, in the light of the admissions of the Respondent in its pleadings and the testimonies of PW1 and PW2.

7. Whether the lower court in finding that the underwritten fees were paid to liquidate the Respondent’s outstanding indebtedness to the Appellant ought not to find as a corollary that the Appellant is entitled to either (1) the shares in respect of which the underwritten fees were paid for or (2) the value of the shares.

The Respondent/Cross-Appellant formulated the issues below for determination:

1. Whether having regard to the facts and circumstances of the case, the Appellant’s right to fair hearing was breached and/or impaired by the trial Judge.

2. Whether the findings of fact affirmed by the lower court were properly arrived at having regard to the pleadings, burden and standard of proof and the totality of the evidence adduced before the trial court.

Arguments

Arguing the appeal, counsel for the Appellant contended that the lower court erred and occasioned a miscarriage of justice when the court did away with issues 1-8 it formulated and resorted to formulating a sole issue from the omnibus Ground of Appeal. Reliance was placed on AJIBONA v KOLAWOLE (1996) 1 NWLR (Pt. 476) 22 in arguing the position of the Supreme Court that an issue of law in an appeal cannot be validly raised in an omnibus Ground of Appeal. It was also argued in favour of the Appellant that certain claims were admitted by the Respondent in the course of proceedings at trial and vide pleadings i.e., the acknowledgment of debt claimed by the Appellant. On the third issue, it was argued for the Appellant that the lower court does not have the discretion to discountenance the Reply Brief filed by the Appellant. With regard to the purported agreements i.e., the Multiple Facilities Loan Agreement and the Shares Underwriting Agreement, counsel for the Appellant submitted that the lower court erred in dismissing its claims especially as there was an alleged admission of indebtedness by the Respondent. In effect, the Appellant challenged the lower court’s decision to uphold the trial court’s decision in its issues five, six and seven. Counsel maintained that the sale of the shares by the Respondent, amounted to an illegality.

Counsel for the Respondent/Cross-Appellant refuted the Appellant’s arguments in general terms, and proffered counter-arguments to the issues addressed by counsel for the Appellant. On issue two, counsel submitted that the finding of the court that the Appellant was unable to prove the Respondent’s indebtedness to it as per its Counter-claim, is grounded in law. He submitted further that the sanction imposed on the Appellant by SEC for infraction was lawful, and the issue of its illegality cannot be raised by the Appellant without joining SEC to the proceedings. In respect of its Cross-appeal, it was argued in favour of the Respondent/Cross-Appellant that the lower court erred in dismissing its monetary award of N3,441,529,445.17K (Three billion, four hundred and forty-one million, five hundred and twenty-nine thousand four hundred and forty-five Naira, seventeen Kobo) representing the illegal bank charges and deductions by the Appellant.

Court’s Judgement and Rationale

In determining the appeal, the Apex Court resolved to hear and determine the PO filed by the Respondent/Cross-Appellant before delving into the substantive appeal. The PO was targeted at the competence of grounds 2, 4, 5, 6, 7 and 8 contained in the Notice of Appeal, to the effect that the said grounds consisted of mixed law and fact for which prior leave of court ought to have been sought and obtained before filing of the appeal. The Apex Court held that the PO was merely targeted at some grounds of the appeal; thus, an admission by the Respondent/Cross-Appellant that the appeal could be sustained on other grounds. It was on this premise, and the principle that a singular ground can sustain an appeal, that the Apex Court struck out the PO. The Apex Court placed reliance on judicial authorities like CROME AIR SERVICES LIMITED & ORS v FIDELITY BANK (2017) LPELR-43470(SC).

Regarding the contention of the Appellant on issue one that the lower court had no discretion to collapse the issues formulated for determination, and particularly to reformulate an issue from the omnibus ground of appeal, the Apex Court disagreed with the arguments, and held that it is elementary that our courts are vested with enormous powers to collapse issues for determination crafted by parties, in the course of settling an appeal. … – SANUSI v AYOOLA & ORS (1992) LPELR-3009. … An appellate court has the power, in the interest of justice to reject, modify or reframe any issues formulated by the litigating parties. The power of court has never been in doubt, as long as the issue reframed is anchored on the Grounds of Appeal filed by the party.

In respect of issue two relating to admission of facts by the Respondent, the Apex Court held that there was no such admission from the records before it. Consequently, the issue was resolved against the Appellant, particularly as there was lack of evidence to support the assertion.

The argument on the third issue, was also rejected by the Apex Court. Here, the argument in favour of the Appellant, was that the lower court failed to consider the Reply Brief filed by the Appellant. The Apex Court however, shared a different ratiocination and held that the lower court did in fact, acknowledge the Reply Brief, but deemed them as rehashing the arguments in the Appellant’s Brief. The issue was thus, resolved against the Appellant.

Regarding the last four issues, the Supreme Court considered them together and held that (i) the burden of proof was on the Appellant to prove that SEC did not give the directive to sell the shares, or that such sale was an illegality; (ii) there was no proof before the lower court that the Respondent was indebted to the Appellant, as not even a statement of account was placed before the trial court; and (iii) the concurrent findings of the lower courts were well founded and grounded in the law and practice; thus, no case of wrong application of any principle of substantive law or procedure or findings as a result of a wrong approach to the evidence. There is clear, direct, positive and credible evidence to justify the decision of the trial court and the court below.

On the Cross-appeal, the Supreme Court agreed with the lower court that the Respondent/Cross-Appellant did not put forward any proof entitling it to the monetary award of N3,441,529,445.17K (Three billion, four hundred and forty-one million, five hundred and twenty-nine thousand four hundred and forty-five Naira, seventeen Kobo) made by the trial court. On the basis of lack of proof, the Apex Court was not convinced that the lower court’s decision should be upturned.

Further to the above, the Supreme Court unanimously upheld the finding of the Court of Appeal, that the Appellant’s appeal, as well as the Respondent’s Cross-appeal were devoid of merit and deserve a dismissal.

Appeal and Cross-appeal Dismissed.

Representation

Dr Charles Mekunye, SAN, with Mohammed Sani Abbas, Esq. for the Appellant

Olawale Oyebode, Esq with Smart Aliu, Esq. for the Respondent