COA Cases: Meaning Of Admission

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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