CORAM

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PARTIES

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1. MR. FELIX OLUSEGUN OROGUN2. MRS. NKECHI PATIENCE OROGUN APPELLANTS

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FIDELITY BANK PLC RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

This appeal is from the judgment of the Federal High Court sitting in Lagos, whereby it dismissed the Appellants’ action for damages over alleged breach of contract arising from Fidelity Treasure Offer 2 (Offer 2) and granting the counter-claim of N29, 257,743.51 with pre-judgment interest of 22% per annum and post-judgment interest of 10% per annum due and outstanding from the credit facilities granted the Appellants by the Respondent. The Appellants’ case was that the Respondent made a public offer of shares, the 1st Appellant subscribed to 1,500,000 ordinary shares, while the 2nd Appellant subscribed to 400,00 ordinary shares paying the sums of N12,000,000.00 and N 3,200,000.00, respectively. The Respondent assured the Appellants of her ability to access and sell the subscribed shares if their CSCS account members were provided on their application form at the time of the subscription; N15, 000,000.00, was raised through the enhancement of the Appellants’ already existing margin facility given by the Respondent for the subscription of the shares; N200, 000.00 was raised by the Appellants personally which was used to purchase the 1,900,000 ordinary shares of the Respondent bank. When the price of shares began to drop, the Appellants decided to sell the shares to stay afloat; believing that their respective CSCS accounts had been credited with the units of shares the Appellants instructed their stock brokers to sell the shares and credit the proceeds thereof into their joint current account; the shares could not be sold because the Respondent had not allotted them to the Appellants. Consequently, the Appellants sued the Respondent for breach of contract at the trial court, which dismissed same, but it granted the Respondent’s counter-claim. Aggrieved with the judgment of the lower court, the Appellant filed a notice of appeal.

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HELD

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Appeal Allowed In Part

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ISSUES

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None

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RATIONES DECIDENDI

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‘BLUE-CHIP’ -MEANING OF ‘BLUE-CHIP’

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“The appellation “blue-chip” naturally referred to the shares in question. Blue-chip investment is one thought to be safe and likely to make a profit (Advanced Learner’s Dictionary 7th Edition, 150). Or blue-chip could mean a corporate stock that is considered a safe investment because the corporation has a history of stability, consistent growth and reliable earnings (Black’s Law Dictionary Eighth Edition, 182).”-

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JUDICIAL NOTICE – WHETHER A BLUE-CHIP BANK IS A MATTER COURTS CAN TAKE JUDICIAL NOTICE OF

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“Whether the respondent is blue-chip bank is a matter of proof by evidence. It is not a matter of public history, literature, science or art, or laws and enactment, official acts of public bodies and the other myriad matters enumerated in section 122 (2) of the Evidence Act on judicial notice. The way banks are run and the categories to which they belong are not matters to expect judicial notice to be taken of them by the court. The presumption of regularity is invoked in respect of judicial or official acts, etc, not on the status of a private body such as the respondent. Judicial notice cannot therefore be taken whether the respondent is a blue-chip bank.” –

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ILLEGALITY -EFFECT OF FAILURE TO PLEAD ILLEGALITY SPECIFICALLY

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“Illegality was not specifically pleaded vide the appellants pleadings in pages 7 – 22, 225 – 242 of the record. It has to be specifically raised with particulars as stated by Order 13 rule 6(1) of the Federal High Court (Civil Procedure) Rules, 2009 (rules of the court below) to the effect inter alia that a party shall plead specifically any fact showing illegality which if not specifically pleaded might take the opposite party by surprise.

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“SPECIFICALLY” – MEANING OF “SPECIFICALLY”

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And the phrase “specifically” means in a detailed and exact way (Oxford Advance Learner’s Dictionary, 7th Edition 1415).” –

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RIGHT TO FAIR HEARING – WHETHER THE RIGHT TO FAIR HEARING IS OPTIONAL

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“Order 13 rule 6(1) of the rules of the court below is inbuilt safeguard against denial of fair hearing which is a fundamental right under section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution), and is also an important requirement of the rule of pleadings which demands that the adverse party be put on notice or in advance of the material facts of the case he shall meet at the trial of case. It is neither optional, nor fanciful/ornamental, in my modest view. Accordingly, the parties and the court are bound by the said rule of court which is to aid smooth, fair and speedy dispensation of justice vide MC Investments Ltd. and Anor. v. Core Investment and Capital Markets Ltd. (2012) 12 NWLR (pt. 1313) 1 at 17, Ifeanyichukwu v. O.C.B. Ltd. (2015) 17 NWLR (pt. 1487) 1.” –

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PLEADINGS – EXCEPTIONAL CASES WHERE STATUTES ARE PLEADED

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“Generally, statutes are not pleaded; however, one of the rare exceptions is when a party is relying on provisions of a statute or an enactment as a defence to the action.” –

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PLEADINGS -WHETHER PLEADINGS CAN ALTER THE TERMS OF A WRITTEN DOCUMENT

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“The lien clause in the loan agreement is contained in a written document. Pleadings are suggestions, not evidence. Paragraph 35 of the statement of defence being a piece of pleading and thus a suggestion by the pleader comprising previous statement in writing, it cannot override the terms of the written loan agreement. A piece of pleading cannot change or alter the contents of a written document. Where it contradicts a written document, the opponent is at liberty to cross-examine the pleader (party that benefits from the particular piece of pleadings) on the contradiction and/or discrepancy with a view to destroy that aspect of the case and; of course, the witness so cross-examined is entitled to proffer explanation on the contradiction or discrepancy as is the case with previous statements of a witness in writing of which a piece of pleading is one vide sections 232 and 233(c) of the Evidence Act read with the cases of Balogun v. A.-G., Ogun State (2002) FWLR (pt.100) 1287, Kwaghshir v. State (1995) 3 NWLR (pt.386) 651, Sambo v. State (1993) 6 NWLR (pt.300) 399, Asakitikpi v. State (1993) 5 NWLR (pt.296) 641, Nwabueze v. State (1988) 4 NWLR (pt.86) 16, Akpabio v. State (1994) 7 NWLR (pt.369) 635, Kanu v. State (1993) 9 NWLR (pt.317) 304.” –

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PLEADINGS –WHETHER A WRITTEN STATEMENT ON OATH IS SIMILAR TO PLEADINGS

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“A written statement on oath of a witness in a frontloaded proceedings is akin to pleadings. The written statement on oath becomes evidence-in-chief when adopted in the witness box by the deponent. After taking the oath to testify and upon adopting his written statement on oath the DW1 for the respondent requested the court at the close of his oral evidence-in-chief in page 280 of the record to use his statement on oath and all the documents tendered as true evidence in the matter and take a decision in the case. Upon adoption the deponent is then liable to cross-examination by the opposing party and re-examination by the party that called him as a witness. See Funtua v. Tijjani (2011) 7 NWLR (pt.1245) 130, Progressive Action Congress v. INEC (2009) All FWLR (pt.478) 260, INEC v. Action Congress (2009) All FWLR (pt.480) 732 or (2009) 2 NWLR (pt.1126) 524, Agagu v. Mimiko (2009) 7 NWLR (pt.1140) 342.” –

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DOCUMENTARY EVIDENCE – DUTY OF A PARTY TENDERING DOCUMENTARY EVIDENCE

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“Section 258(1)(d) of the Evidence Act defines a document to include any device by means of which information is stored, recorded or retrievable including computer output. A GSM gadget with useful information can therefore be tendered in evidence together with the message or information stored by it. Once tendered and admitted in evidence it becomes documentary evidence. The duty then behoved the party that tendered it in evidence to read the information or message in the open court as is the case with documentary evidence, or the parties may by consensus take the document as read. And/or the GSM gadget may be admitted in evidence as computer generated evidence under section 84 of the Evidence Act.” –

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DOCUMENT – DUTY ON PARTIES TO ASCERTAIN THE GENUINENESS OF A DOCUMENT

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“Genuiness of any piece of evidence sought to be relied upon by a party in the case unless the document is admitted by the adverse party must of necessity be properly ascertained and verified to weed out or eliminate suspicious or spurious documents.

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BREACH OF THE PROVISION OF A STATUTE -WHETHER BREACH OF THE PROVISION OF A STATUTE CAN BE DECLARED ILLEGAL BY THE COURT WHERE THE STATUTE DOES NOT PROVIDE ANY PENALTY FOR BREACH OF ITS PROVISION

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“It was held by the then Federal Supreme Court in Solanke v. Abed and Anor. (1962) NSCC 160 at 162 – 163 that where an enactment or statute does not provide any penalty for breach of its provision a contract entered into in breach of the statute or enactment should not be declared illegal by the court.” –

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PERFORMANCE OF A CONTRACT- WHETHER A PARTY CAN WAIVE THE COMPLIANCE WITH TIME IN THE PERFORMANCE OF A CONTRACT

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“When time is made a condition in the performance of a contract, a party may by his conduct waive compliance with time by accepting the performance of the contract outside the time-frame as was the case here as rightly found by the court below vide Udom v. E. Miche letti and Sons Ltd. (1997) 8 NWLR (pt. 516) 187 at 200 where the Supreme Court in agreeing with the Court of Appeal held inter alia that since the respondent in that case had waived the question of performance by the appellant in respect of time of completion and since the respondent did not serve reasonable notice showing he meant to hold the appellant to its own time, the respondent therefore kept the contract alive for himself and the appellant.” –

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EXHIBITS – WHETHER A JUDGE CAN INFER THAT THE EXHIBITS BEFORE HIM HAS BEEN TAMPERED WITH

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“It had to be so because the issue affected the integrity of the witness and was criminal in nature (forgery). It required some hard evidence, not conjecture or surmise. See Agbonifo v. Aiwereoba (1988) 1 NWLR (pt. 70) 325 at 341 – 343, to the effect that although a Judge who had the exhibits before him was perfectly entitled to infer from what is obvious on the face of the exhibits that they have been tampered with, it will be going too far to accuse and condemn a particular party who was a witness in the case of tampering with the exhibits without confronting the party with the specific allegation under cross-examination by the adverse party.” –

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“JOINT” – MEANING OF THE PHRASE “JOINT”

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“The phrase “joint” means involving two or more people together like a joint bank account in the name of more than one person, for example a husband and wife (Oxford Advanced Learner’s Dictionary 7th Edition page (801).” –

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JOINT ACTION – IMPLICATION OF A JOINT ACTION

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“Being a joint action with a joint defence to the counter claim the appellants are bound together with inseparable Siamese twins in the action and the joint defence to the counter claim vide Plateau Publishing Co. Ltd. and Ors. v. Chief Chuks Adophy (1986) 4 NWLR (pt. 34) 205, Ogunleye v. Arewa (1960) WRNLR 9, Okonkwo v. Okolo (1988) 2 NWLR (pt. 79) 632.” –

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RECORD OF APPEAL- PARTIES AND COURTS ARE BOUND BY THE RECORD OF APPEAL

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“The parties and the court are bound by the record of appeal vide Texaco Panama Inc. v. S.P.D.C. Ltd. (2000) 5 NWLR (pt. 729) 209, Garuba v. Omokhodion (2011) 15 NWLR (pt. 1269) 145.” –

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DOCUMENTS – STATUS OF DOCUMENT EXECUTED IN SEVERAL PARTS

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“Documents made from the same uniform process and executed by the parties thereto as in the case are primary evidence of each other or of their counter-parts so made or produced vide 86 (2) of the Evidence Act to the effect that where a document has been executed in several parts, each part shall be primary evidence of the document. See also M.V. “Caroline Maersil” v. Nokoy Investments Ltd. (2000) 7 NWLR (pt. 666) 587, Edokpolor v. Sem-Edo (1989) 4 NWLR (pt. 116) 473, Esso W/A Inc. v. Oladiti (1968) NMLR 453.” –

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Companies and Allied Matters Act Cap. C20 Laws of the Federation 2004.|Constitution of the Federal Republic of Nigeria 1999|Court Of Appeal Act 2004|Evidence Act 2004|Federal High Court (Civil Procedure) Rules, 2009|Investments and Securities Act Cap. 124 Laws of the Federation of Nigeria 2004|

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