JOHNSON ARIYO AKINNAWO V NATIONAL BOARD FOR TECHNICAL EDUCATION
March 30, 2025SANI ILIYA & ANOR. v, THE STATE
March 31, 2025MR SAMUEL SUNDAY AFEMIKHE (PRACTISING UNDER THE NAME AND STYLE OF S. S. AFEMIKHE & CO (CHARTERED ACCOUNTANTS) & ORS v. STANBIC IBTC BANK PLC
Legalpedia Citation: (2020) Legalpedia (CA) 17021
In the Court of Appeal
HOLDEN AT YOLA
Mon Jul 27, 2020
Suit Number: CA/L/111/2017
CORAM
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
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OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
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OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
OBASEKI, JUSTICE SUPREME COURT
PARTIES
MR SAMUEL SUNDAY AFEMIKHE
STANBIC IBTC BANK PLC
AREA(S) OF LAW
Not Available
SUMMARY OF FACTS
The 1st Appellant, a customer of the Respondent applied for and was granted a credit facility of N6 Million to finance his Firm’s working capital requirements. It was agreed that the facility be secured by a third party legal mortgage over a property known as and situate at No. 9, Jubril Martins Street, Surulere, Lagos. Series of negotiations ensued between 2003 and 2007 with a view to reaching an amicable resolution on how to repay the facility when the Appellants failed to pay back the facility at maturity. The Appellants claimed that there was an attempt by the Respondent to surreptitiously register a mortgage over another of their properties situate at Plot 46, Ishawu Adewale Street, Surulere, Lagos and to challenge this, the 1st Appellant and his wife instituted Suit No. LD/260/2007, which resulted into Terms of Settlement entered as Consent Judgment on 12/11/2009. While the action was still pending, on 29/4/09 the Respondent lodged a bad credit history report with the Central Bank of Nigeria Bureau – CBN-CRMS database in respect of the Appellants. This the Appellants averred to in the amended statement of Defence deprived them the opportunity of securing funds or facilities elsewhere to keep their business afloat and losing most of their competent staff then to other Firms. The Appellants also claimed that all efforts to get the Respondent to execute a Deed of Release in respect of the property used as collateral, even after fully liquidating their outstanding with the Respondent, has proved abortive. Hence the Appellants filed another action against the Respondent in the High Court of Lagos State, wherein it sought for the sum of N1, 000,000,000 (One Billion Naira), being general damages in negligence; and an order compelling the Respondent to execute a Deed of release of the 2nd Appellant’s property at 9, Jubril Martins Street, Surulere, Lagos, which property was mortgaged to secure a N6m facility obtained from the Respondent by the 1st Appellant. At the end of the trial, the lower court in its judgment, granted the 2nd relief of the Appellant while dismissing their 1st relief. Dissatisfied with the judgment of the lower court, the Appellant has thus filed this appeal vide a Notice of Appeal containing four Grounds of Appeal.
HELD
Appeal Dismissed
ISSUES
Whether the Consent Judgment in Suit No. LD/260/2007 estopped the claim for negligence in Suit No. LD/ADR/Cs/153/2013? Whether the Appellants’ case before the lower court was contested by the Respondent? Whether the learned trial Judge descended into the arena of conflict by holding that the Appellants were not entitled to damages for negligence having not complied with their obligation to pay the first installment at its due date. Whether the Appellant is entitled to general damages or any damages at all.
RATIONES DECIDENDI
PLEA OF ESTOPPEL PER REM JUDICATA – CONDITION PRECEDENT FOR THE SUCCESSFUL APPLICATION OF THE PRINCIPLES OF ESTOPPELS AND/OR RES JUDICATA
“In Ogbolosingha & Anor vs. Bayelsa State INEC &Ors (2015) 2 S.C (Pt. II) 1;(2015) LPELR-24353 (SC), the apex court per Ogunbiyi, JSC at pages 27-29 held thus:
“The law is trite in laying down the fundamental condition precedent to the application of the principles of estoppels and or res judicata wherein the parties and the subject matter of the previous proceedings must be the same with the present under consideration. Judicial authorities have enunciated the principles which are well pronounced in the case of Makun V. F.U.T. Minna (supra) wherein this Court re-iterated that, for a plea of estoppels per rem judicatam to succeed, the party relying thereon must establish the following requirements or pre-conditions namely:-
That the parties or their privies are the same in Ogbolosingha & Anor V. Bayelsa State Iec & Ors both the previous and the present proceeding.
That the claim or issues in dispute in both actions are the same.
That the res or the subject matter of litigation in the two cases is the same.
That the decision relied upon to support the plea of estoppels per rem judicatam is valid, subsisting and final.
That the Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction.
It has also been held severally by this Court that, unless all the above constitutional elements or requirements of the doctrine are fully established, the plea of estoppels per rem judicatam cannot sustain. See also the decisions in Yoye V. Olubode (1974) 10 SC 209; Alashe V. Olori-Ilu (1965) NMLR 66; Fadiora V. Gbedebo (1978) 3 SC 219 and Udo V. Obot (1989) 1 SC (Pt. 1) 64.
Further still, his Lordship Onu, JSC re-affirmed the principle in the case of Dokubo V. Omoni (supra) wherein he held at page 659 and said:-
“It is settled that for the doctrine of estoppels per rem judicatam to apply, it must be shown that the parties, issues and subject matter in the previous action were the same as those in the action in which the plea is raised. See Alashe V. Olori Ilu (1964) 1 All NLR 390 at 394; Balogun V. Adejobi (1995) 2 NWLR (Pt. 376) 131, and Faleye V. Otapo (1995) 3 NWLR (Pt. 381) 1.”
From the cumulative summary of the foregoing authorities, it is clear that the existence of the principle is entirely a question of fact for purpose of establishing whether the parties and their privies, the facts in issue and the subject matter of the claim are the same in both the previous and the present suits.
The plea of res judicata is of a special nature as it operates not only against the parties but also the Court itself and robs it of its jurisdiction to entertain the same cause of action on the same issues previously determined between the parties by a Court of competent jurisdiction.”
Similarly in Daniel Tayor Trans. Ent. Nig. Ltd vs.AlhajiLiadiBusari&Anor NSCQR Vol. 45 2011 p.454, the apex court per Onnoghen, JSC (as he then was) at page 487 held:
“For a successful plea of res judicata, this Court has decided, by a long line of cases that the following conditions must be established by the party relying on it:-
a. that the parties or their privies in both the earlier case and the case in
which it is raised are the same;
b. that the judgment relied upon is valid, subsisting and final;
c. that the claim or issue in dispute in the proceedings are the same;
d. that the subject matter of the litigation in both cases is the same; and,
e. that the court that decided the previous suit is a court of competent jurisdiction.”
For the plea of estoppel per rem judicata to succeed, all the above criteria must be satisfied. If any is missing the plea will fail. This is so because a successful plea will deprive a court jurisdiction to handle the matter. I agree that a consent judgment is a valid judgment and if all the other conditions are present and proved, the fact that it is a consent judgment does not make it any less a valid judgment. This is because a consent judgment is an agreement between the parties on how their dispute will be settled. Mostly, the parties abandon their various claims for a compromised position which is acceptable to them. This is as much a valid judgment as one which is the product of a full-blown trial. From the facts I had stated above, it is clear to me that the plea of estoppel per rem judicata cannot avail the Respondent as the subject matter and the causes of action are different in both cases. –
CONSEQUENTIAL AMENDMENT – WHETHER IT IS MANDATORY FOR A DEFENDANT TO FILE A CONSEQUENTIAL AMENDMENT TO AN AMENDED STATEMENT OF CLAIM
“It will be completely out of place to argue that the Respondent did not contest the case of the Appellants in the lower court simply because the Respondent did not file a consequential amendment when the Appellants filed an amended Statement of Claim. For whatever it is worth, let me state in clear terms that a Defendant to a suit is not obliged to file a consequential amendment to an amended statement of claim. Indeed, if the Defendant is comfortable with his statement of defence that it adequately responded to the amendment statement of claim, he need not file a consequential amendment. This is elementary law for which I need not cite any case. It is not only elementary law but also common sense. The operative pleading before the court was therefore, the amended statement of claim and the statement of defence filed before the amended statement of claim. –
UNCHALLENGED EVIDENCE – FACTS NOT CHALLENGED ARE DEEMED ADMITTED
“A fact deposed to in a statement of claim not challenged in the statement of defence is deemed admitted by the Defendant and a court will act on same as unchallenged evidence. See Benard Okoebor vs. Police Council & Ors (200312 NWLR (Pt. 834) 444; Chime &Ors vs. Chime (2001) LPELR-24858 (SC): Camroon Airlines vs. Mr. Mike Otutuizu NSCQR Vol. 45 2011 p. 962. –
COURT – WHETHER OR NOT A COURT CAN BE ACCUSED OF RAISING AN ISSUE SUO MOTU WHERE THE ISSUE EXISTS IN THE LITIGATION
The Appellants’ senior counsel submission that the question which the trial judge posed and answered on pages 350-351 of the record in coming to the decision is outside the purview of the case before the lower court is not correct in my view. Raising that question and answering same with due respect to learned silk does not amount to assisting any of the parties or going outside the purview of the case or the matter before the lower court. In this respect, I find the case of Ikenta Best (Nigeria) Ltd vs. Attorney General River State (supra)cited by Respondent counsel very instructive. The apex court held:
“A Court can only be accused of raising an issue, matter or fact suo motu, if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exists in the litigation. A Judge, by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences, the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct.”
The question is whether the Respondent failed to remove the report to the CBN standing against the Appellants. This is the basis of the action against the Respondent in this suit. It is the failure to execute the deed of release over the property and the alleged damages the Appellants suffered for the bad credit history made by the Respondent against the Appellants to CBN that led to the institution of this action. It therefore, stands to reason that any issue that relates to the cause of action cannot be said to be an issue raised suo moto by the court. While the principle of the law that a court cannot raise and resolve an issue suo moto but a court need to look closely at what issues in an action can be said to be raised suo moto. Where counsel to a case either based on his strategy in the case decides not to deal with an issue which naturally arising from the cause of action and a court while writing the judgment delve into that issue, it will not in my opinion on the authority of the case cited above amount to the court raising the issue suo moto. This is because, a court in its judgment should not be limited only to the argument of counsel or to the cases cited by counsel. A court has the right to go to cases and statutes not provided by the counsel to the parties and even expand the argument on issues arising from the cause of action. I make bold to say that the lower court did nothing wrong in my view in raising the question and determining same. This is more so that the parties in their pleadings recognized the issue of the report made to the CBN as a major issue in this case. –
BANKING – OBLIGATION OF BANKS TO SUBMIT REPORTS ON ALL ISSUES INCLUDING NON -PERFORMING LOANS TO THE CENTRAL BANK OF NIGERIA
“The first point that must be made is that the Respondent was not at fault in making that report to the CBN. This is a requirement of the law. The CBN is the bank to other banks and has supervisory powers over other banks. The Respondent as a bank in Nigeria has an obligation to submit reports on all issues including non -performing loans to the CBN. This court can take judicial notice of that. See Adegboyega vs. Igbinosun (1969) LPELR-25549 (SC). –
UNCHALLENGED EVIDENCE – UNCHALLENGED EVIDENCE REQUIRES NO FURTHER PROOF
“The law is clear that a court will act on unchallenged evidence. The Respondent did not challenge the evidence before the lower court and so it is deemed proved as it does not require further proof. See Achilihu & Ors vs. Anyatonwu (2013) LPELR-20622 (SC); DIN vs. African Newspapers of (Nig) Ltd (1990) LPELR-947 (SC). –
AWARD OF GENERAL DAMAGES – GUIDING PRINCIPLES ON THE AWARD OF GENERAL DAMAGES
“The law on general damages is clear and settled. All a party who is seeking general damages needs to show is that he suffered some wrong because of the action of the other party, sounding more specific, the Appellants ordinarily will be entitled to general damages since there is evidence that they suffered some back turn in their business because of the report made to the CBN. General damages are damages based on what the Appellants suffered which flow naturally from the action of the Respondent. The Appellants need not specifically show item by item what they suffered. This is the difference between general and special damages. All a court requires to award general damages is that the Appellant suffered some injury arising from the action of the Respondent. I must say that I agree with the Appellants that there was no need for the lower court to bring in the concept of aggravated damages. That was completely out of place as the Appellants did not ask for aggravated damages. To focus on aggravated damages as the basis to refuse a claim for general damages will be out of place as the law relating to both damages are different both in name and legal consequence. In Elf Petroluem Nigeria Limited vs. Daniel C. Umah&Ors (2018) 10 NWLR (Pt. 1628) 428, the apex court on general damages held:
“It is pertinent to re-iterate herein that in the award of General Damages, a wide spread power is given to the Court comparable to the exercise of discretion of the Court. It is enormous and therefore far-reaching and contrary to the contention held by the appellant herein. The measure of general damages is awarded to assuage such a loss, which flows naturally from the defendant’s act. It needs not be specifically pleaded. It suffices if it is generally averred. They are presumed to be the direct and probable consequence of that complained of.
Unlike special damages, it is generally incapable of exact calculation. See the following authorities of Federal Mortgage Finance Ltd V. Hope EffiongEkpo (2004) 2 NWLR (Pt. 865) 100 at 132, Dumez V. Ogboli (1972), 2 SC 196 and Waso V. Kalla (1978) 3 SC 21 .”
Similarly, in UBN Plc vs. Ajabule & Anor (2011) LPELR-8239 (SC), the Supreme Court held thus:
“General damages are said to be damages that the law presumes and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued; that the harm is reasonably expected and need not be alleged or proved. They need not be specifically claimed. They are also termed direct damages; necessary damages.”
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AGGRAVATED DAMAGES – DEFINITION OF AGGRAVATED DAMAGES
“Aggravated damages are those granted when the injury is aggravated but not necessarily flowing from the natural consequence of the injury. Aggravated damages are damages of some special class where what is involved is the injury affecting the feelings of the person affected. The apex court defined aggravated damages in these words in Mma Inc vs. Nma (2012) 12 S.C. 11;
“The Court may take into account the Defendants motives, conduct and manner, and where they have aggravated the plaintiff damages may be awarded. The Defendant may have acted with malevolence or spite or behaved in a high handed, malicious insulting, aggressive manner. Aggravated damages are designed to compensate the plaintiff for his wounded feelings. See paragraph 1189 of the Halsbury Laws of England 4th Ed. Vol. 12 and the case of Kouno v. Chiekwe (1991) 2 NWLR (Pt. 173) 316.”
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COURT – DUTY OF COURT IN DISPENSING JUSTICE
“The duty of the court is to do justice between the parties before it. The apex court made this position clear in Owuru & Anor vs. Adigwu & Anor (2017) 6-7 S.C. (Pt. 111) 67 when the court held:
“The powers granted the Courts in Section 6 of the Constitution of the Federal Republic of Nigeria 1999, (as amended) are meant to be used to do Justice to all manner of persons. Therefore, at all times, the Courts must be vigilant to make sure that every person who comes to the Temple of justice receives his due share.”
Justice must not be seen from the angle of any of the parties alone but also from the perspective of the state or the society. Justice is properly served when the interest of all the parties are taken into consideration and that of the society also. The court is to balance all this conflicting interest in doing justice. A court should not look at the interest of the Claimant alone to arrive at justice. In such a situation, the court will see justice as only addressing the wrong made to the Claimant for which he wants redress. Justice from this perspective will only be served if the claim of the Claimant is granted. If the court otherwise holds, the Claimant will say he did not get justice. The court should also not see justice from the perspective of the Defendant alone. As to the Defendant justice is served only when the case of the Claimant is dismissed. Anything short of that will not be justice from the perspective of the Defendant. To the Defendant justice is served if he is let off the hook. The court cannot satisfy both of the parties at the same time. The court will therefore also look at justice from the perspective of the wider society whose norms are to be protected. To therefore, serve justice there must be a balance of all these. This court per Abiru, JCA puts this beautifully in these words in the case of Salisu & Ors vs. Abubakar & Ors (2014) LPELR-23075 (CA):
“Now, the task before any Court in all disputes brought before it for adjudication is to ensure the doing of substantial justice to all the parties involved in the disputes.
The theory of justice enjoins a Court of law to hold an even balance between the parties as one sided justice will amount to injustice. It postulates that justice is a three-way traffic – (i) justice for the plaintiff who is crying for redress of the alleged wrong to him; (ii) justice for the defendant who is pleading that he should be heard and his defence considered before any order is made against him; and (iii) justice for the society at large whose social norms and psyche are certainly going to be adversely affected if it cannot be seen by the common but reasonable man that upon the facts as laid down, justice in the real and true sense of the word has been seen to have been done by the court – Okomu Oil Palm Ltd Vs Okpame (2007) 3 NWLR (Pt. 1020) 71.”
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TERMS OF A CONTRACT – WHETHER A PARTY CAN BE ALLOWED TO BENEFIT FROM HIS BREACH OF THE TERMS OF SETTLEMENT
“The question now is, will justice be served if damages is granted to the Appellants who breached the terms of settlement. The terms of settlement is to the effect that once the 1st installment is paid on 2/10/2009, the report should be removed from CBN-CRMS. The total payment was to be made on 31/1/2010. The 1st installment was paid on 12/1/2010 precisely 29 days from when all the five installments ought to have been paid. The Respondent cannot in the circumstance be held liable for breaching the terms of the settlement which the Appellants also violated and breached. The tenet of justice will not be served for a court to allow a party who breached the terms of a contract to enjoy any benefit under that same law. The Appellants cannot benefit from the terms of settlement that they also breached. In Adedeji vs. Obajimi (2018) LPELR-44360 (SC) the apex court held thus:
“I find it pertinent here to ask in the interest of equity and good conscience, howbeit that the Appellant who has willy-nilly refused (and with no lawful excuse) to perform a contract he has willingly signed and deliberately held the Respondent to ransom by refusing to pay up without word of his loss of interest or otherwise to the Respondent, be made to benefit from his breach. It is trite that a party should not benefit from his own wrong and I am of the firm view that the decision of the trial Court amounts to allowing a party reap benefits from his wrong. See: Enekwe VS I.M.B (Nig) Ltd (2007) All FWLR (Pt. 349) page 1053 at 1081. The trial Court’s attempt to bail the Respondent out on the equitable doctrine of part performance shall not be allowed to stand, it is my firm view that equity must be done to both parties and not just the Appellant. I affirm the finding of the Court below as follows: “It must be stated here that the doctrine on part-performance arose by sheer intervention of equity. Equity intervened to mitigate the losses that may arise by rigid application of contracts that by law ought to be in writing but were made orally. The doctrine is based on estoppel that a defendant who plainly indicated by his conduct the existence of a contract could not be allowed to give himself the lie and take shelter under a statute. It is designed to prevent fraud from being perpetrated on the other side who has altered his position on the faith of the contract… Exhibit 7 is a written contract between the parties. They did not enter into any oral contract in which the appellant made the respondent alter his position adversely on the faith of the contract. So, the doctrine of part-performance imported into the judgment did not hold any water. The learned trial judge with respect to her, talked about interest of justice to the respondent who was in breach of a fundamental term. I am afraid; interest of justice must be to the appellant as well and I dare say even to the Court itself. The respondent did not pay the purchase price on 30-4-99 as agreed. Within 30-4-99 and 29-10-99, the respondent put the appellant in limbo; to use the language of the trial judge. The respondent failed to pay up on scheduled date. For about six months, the respondent put the appellant in suspense and had the audacity to say that the appellant was negotiating with others for the sale of his concern.” I absolutely agree with this position and do believe that if anything, that the wand of interest of justice and equity being waved in favour of the Appellant at the trial Court should have been directed at the Respondent too, luckily for the Respondent, posterity has smiled on him through the decision of the Court below and I do not intend to overturn that decision, in fact, I endorse it.”
See also Teriba vs. Adeyemo (2010) LPELR-3143 (SC); PDP &Ors vs. Ezeonwuka&Anor (2017) LPELR-42563 (SC).
Damages is an equitable relief and therefore the maxim of equity that says he who comes to equity must come with clean hands and do equity, will come into play here. See Alhaji Mohammed Karaye vs. Levi Wike (2019) LPELR-49382 (SC). –
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Court of Appeal Rules, 2016|
