Francis Shanu V. Afribank Nigeria Plc (2002)

LAWGLOBAL HUB Lead Judgment Report

S. O. UWAIFO, JSC. 

This is an appeal from a judgment of the Court of Appeal Benin Division, given on 11 July, 1997 [Coram: Akintan and Nsofor JJCA, Akpabio JCA dissenting] which allowed the appeal against the decision of G.E. Edokpayi, J., sitting at the High Court, Benin. The plaintiffs, now appellants, alleged as per their amended statement of claim to have imported into Nigeria, the sum of US$25,000,000 in 100 dollar bills making 250,000 such bills, on a Tanker Vessel called MV Botony Trinity which berthed at Warri Port on or about 29 June, 1983. They said the money was eventually paid into the respondent bank [Afribank Nigeria Plc. Warri branch] upon an agreement with the bank to pay the plaintiffs the naira equivalent of N2 per dollar, making a total of N50,000,000.00. This was on 22 July, 1983 whereof as alleged, the plaintiffs opened a current account into which the sum of N40,000,000.00 was credited in exchange for US$20 million.

The balance of N10,000,000.00 was to be credited later “due to insufficient funds” at the time. The said balance was later said to have been credited. It turned out that the defendants denied any knowledge of the lodgment of 25 million dollars with them. The plaintiffs consequently sued them by writ of summons filed on 11 March, 1993 at the High Court, Benin jointly and severally for; (1) N50,000,000.00 (2) Interest at commercial bank rate of 30% per annum from 22 July 1983 on the sum of N50,000,000.00 until judgment is delivered. (3) Loss in the value of the Naira by 1000% which is equal to N500,000,000.00. The defendants [i.e. the present respondent/cross-appellant and one Segun Ajayi as 2nd defendant] in their statements of defence denied there was ever any such transaction. They averred that no vessel known as MV Bolony Trinity berthed at Warri Port as alleged, or that if it did, that it brought such or any amount of US dollars. They said further that any documents to that effect would be forgeries. Evidence was led by both sides before Obi, J., who presided over the proceedings at the High Court, Benin. The 1st plaintiff testified and called five witnesses while the 2nd defendant testified and the 1st defendant called nine witnesses. Several documents were admitted in evidence. The case had reached address stage when Obi, J., relocated to Delta State after it was created from the erstwhile Bendel State. From the evidence led before Obi, J., the following questions, among other matters, had created some agitation of the mind, which he as the trial judge would have had to resolve in his primary duty, having seen and heard the witnesses testify. The first question is, did MV Botony Trinity berth at Warri Port? The plaintiffs claimed that the money came through the said Vessel. An Assistant Controller of Customs, Michael Arubasa, who gave evidence as d.w.5, after testifying that tanker vessels do not carry any consignment other than oil and that foreign currency could not be regarded as merchandise, said: “We have since gone through our document and there is no record of Customs dealing with Botony Trinity in 1983. We checked through our arrivals and sailing register for 1983 and we could find nothing about Botony Trinity. He then tendered a huge register for that purpose which was admitted as exhibit 12, and continued: “From records available Botony Trinity never came to Warri Port on the date in question. Exhibit 12 is conclusive that Botony Trinity never came to Warri Port.” This is a vital evidence coming from this witness, backed by documentary evidence. Similarly, Bassey Effiong Eme, a Transport Officer in the Nigerian Ports Authority, Warri (d.w.6) said: “I was in Warri in June to August 1983, but not as Traffic Officer. I am on subpoena to give evidence in this case. Our record shows that Botony Trinity was not in our port between June to August 1983.” The second question is, was there in fact US$25 million dollars cargo or consignment imported and brought to the defendant bank? Christopher Obeto, a Senior Manager, Central Bank of Nigeria (d.w.3) said: “Using machine to count new notes of 250,000 will take between 5-6 days. Using the machine if they are old notes, they (sic) could take much longer.” Also Adelegun Ola Owolabi (d.w.4), another Senior Manger, Currency Operation Department, Central Bank of Nigeria, said: “We count notes by machine. It will take an operator 25 days to count 2 million pieces by machine. An operator counts 7 boxes a day working for 8 days (sic: hours). It is not possible to make an PAGE| 2 operator work for 24 hours. It will take roughly few days of 8 hours to count 250,000 notes.” Yet, the 1st plaintiff said the money was counted in three hours although he said it was counted in bundles! However, a witness called by him, one Lucky Ojo Osawe (p.w.5) testified that the money was counted in notes one by one. He said: “The consignment was in the Captain’s long room. The pilot opened the consignment with his key. I then proceeded to count the money one by one with counting machine which was already inside the vessel. Some one operated the machine while I was there. The money in dollars was counted in my presence. US dollars in 100 denominations put in bundles. The machine counted each 100 dollar notes. The counting showed 25 million dollars…..I cannot tell how long we remained in the Vessel. It was about 5 hours.” But another of the plaintiffs’ witnesses, who had been called to testify as to how the money was received in the respondent bank in Warri, one Edwin Iwachukwu Iwigbulan (p.w.2), gave the following evidence: “To the best of my knowledge the largest amount we have ever kept in that safe was N1.00 million. It was not physically possible to keep N40 million there in our bank safe. No room would accommodate that sum.

To my knowledge the plaintiff did not bring the sum of 25 million U.S. dollar to the bank on 22/7/83. It was impossible for that amount to have been brought without my knowledge. I did not observe anybody carrying trunks to the branch. I was in the bank from 22/7/83 till I left in 1984. Throughout that period we dealt with no such foreign cash transaction. If U.S. dollars 25 million was in 100 notes, that would be 250,000 notes that is 2,500 bundles of 100 units. We have no place in our safe for that large sum of money. Myself and the Cash Officer or sometimes the 2nd defendant were responsible for opening and locking up the bank safe. At the end of the day we checked what was left in the safe. We did this from 1st July to end of August, 1983.” There is evidence given by the 2nd defendant, Segun Ajayi (a former Bank Manager of the respondent bank, Warri Branch) and by Prince Henry Ama Ugoji (d.w.9), Assistant General Manager, East Area, of the respondent bank, that there was no record of N40,000,000.00 having been credited to the plaintiffs’ account. What was said, per the 2nd defendant was: “Exhibit 6 was filled by Mr. Shanu in my office N40.00 and not N40 million…..I was watching him as he filled the teller. I saw no space after N40.00 was filled. I did not bother about the space left after he filled N40.00.” And as per d.w.9: “The Bank could buy foreign currency but cannot keep it. Must be transferred to the Head Office in Lagos. There is no evidence in our book to show lodgment of N40 million on 22/7/83. The N40.00 lodgment was made with a teller….The opening account on the ledger card of the customer is N40.00.” Thirdly, was there a likely case of impersonation by one of the witnesses for the plaintiffs? One Lucky Ojo Osawe (p.w.5) presented himself as an Assistant Inspector of Customs who claimed to have worked at Warri Port and at the time signed a currency declaration form (exhibit 4), in respect of the 25 million dollars in question. He gave his service number as 24357. He testified thus: “1 went on board the Botony Trinity on the instruction of my superior officer late Francis Imokhai. My specific instructions were to go on board of the Vessel and verify the sum 25 million dollars consigned to one Francis Shanu sent from abroad. I was told that Captain Yassin brought the money. It was a consignment to Mr. Francis Shanu.” Later in his evidence he said: “Exhibit 4 is never used for a consignment. It is only used by a traveller who brings money into the country.” Still later he said: “Francis Shanu (1st plaintiff) was the importer of the subject currency. Captain filled the form which I signed …. Exhibit 4 is a declaration of importation. It is the person who imports that declares that he has imported.” It would appear at a stage that his identity as a Customs Officer was doubted and so he was cross-examined towards that end. He said: “My surname is Osawe but my second native name is Ojo. I have not lied. I am an accredited customs officer. He service number I gave to Court is my correct service number.” As a follow up, d.w. 5 (Asst. Controller of Customs) testified thus: “I have heard of Lucky Osawe Ojo in the summons of this court served on me. We have up to 600 staff in Bendel State. We received a summons that such an officer has a Service No. 24357. We have station register wherein all Customs Officer report in the area. We then do documentation whereby the officer submits his passport photographs. A file is opened for him. Going through the file we have under No. 24357, against name of Osawe Lucky Omori. Register shows that he reported on 2/1/86 from Kano on transfer presently serving in Benin City. His passport photograph is there. I have the file record. I have my area Controller as the boss. I am the 2 i/c. The officer, Mr. Osawe is under me.” I have gone into the above in order to be able to discuss the implications of the turn the proceedings took before Edokpayi, J. The plaintiffs brought a motion before Edokpayi, J., seeking the following prayers: PAGE| 3 1. Admitting in this suit a certified true copy of the evidence of the plaintiffs and their witnesses and the evidence of defendants and their witnesses [given] before Honourable Justice J.A. Obi in this suit. 2. An order granting leave to the plaintiffs/applicants to amend their statement of claim as per the exhibit DDM 1 attached in the manner underline thereon.” The reasons given in the affidavit sworn by the 1st plaintiff in support of the motion were that Obi, J., had relocated to Delta State before he could receive the addresses of counsel after close of evidence on both sides, and further: “9. That Plaintiffs/Applicants’ witnesses are independent workers who are on contract basis move and/or shift from place to place in the course of carrying out their duties. 10. That I have not been successful in locating my witnesses despite vigorous attempts. 11. That it is now clear beyond any shadow of doubt that my witnesses will not be able to attend Court in view of the fact that they are independent workers who have not permanent job location. Even each Civil Servants’ whereabout is unknown. 12. That it would occasion great delay, hardship and expense on the plaintiffs/applicants to bring the aforesaid witnesses each of whom testified in this case to Court if they can be located at all.” The motion was moved before Edokpayi, J., on December 1, 1992 [not having been opposed by learned counsel for the 1st defendant, 2nd defendant being absent and not represented by counsel], and a short ruling was given in these terms: “Having read through the motion papers, leave is hereby granted as prayed. The certified true copy of evidence of the plaintiffs and their witnesses and the evidence of the defendants and their witnesses before Honourable Justice J.A. Obi in this suit are hereby admitted in evidence and leave is hereby granted to the plaintiffs to amend their amended statement of claim as per the Exhibit DDM 1 attached in the manner formulated and underlined thereon. Dr. Mowoe tenders the certified true copy of evidence with the consent of Akhidenor, Esq. and the certified true copy of evidence is admitted and marked as exhibit 19. Dr. Mowoe says that that is the close of the case for the plaintiffs and Akhidenor also says that that is the case for the 1st defendant.” On 6 April, 1993, counsel for the plaintiffs and the 1st defendant addressed the court. The 2nd defendant personally addressed the court also. In a reserved judgment given on 19 January, 1994, Edokpayi, J. held that on the preponderance of evidence, he preferred the case of the plaintiffs. He gave judgment for them for N50,000,000.00 with interest at commercial bank rate of 25% p.a. from 27 July, 1983 till date of judgment with costs of N2,000.00 against the defendants jointly and severally. That would be compound interest since it is at commercial bank rate. The 1st defendant appealed against the judgment.

The Court of Appeal allowed the appeal by a majority decision and ordered the case to be heard de novo before another judge of Edo State High Court. In the said judgment, Akintan JCA observed as follows: “The reasons given in the affidavit for inability to make the witnesses testify before Edokpayi, J. are contained in paragraphs 9, 10, 11 and 12 of the affidavit, already quoted above. The reasons may be summarised as follows: (a) that the plaintiffs’ witnesses were independent workers who were on contract basis the plaintiffs was unsuccessful in locating them; and (b) that it would occasion great delay, hardship and expense on the plaintiffs to bring their said witnesses, who had earlier testified in the case to court if they could be located at all. No particular names were given among the 5 witnesses that had earlier testified before Obi, J. as those who were independent workers who could not be easily located by the plaintiffs or whose presence in court would be difficult to secure or at great delay or expense. However, the 1st plaintiff was definitely not one of those whose previous evidence could be admitted under section 34(1) of the Evidence Act. This is because he was present in court and he deposed to the affidavit in support of the motion without giving any reason in his said affidavit as to why he could not be available to testify before Edokpayi, J. Yet he failed to give any evidence before Edokpayi, J. But the learned Judge used his earlier evidence typed along with the proceeding before Obi, J., and admitted as Exhibit 19 before Edokpayi, J. Similarly, the 1st plaintiff did not give any reason why the 2nd defendant and the 9 witnesses who testified for 1st defendant should not be allowed to testify at the resumed hearing of the case before Edokpayi, J.” This was supported by Nsofor JCA after reciting the provisions of section 34(1) of the Evidence Act and then observed as follows: “There is nothing in the cold, printed record before me indicative that Francis Shanu and any of the defendants, qua appellants herein, the defendants’ witnesses are dead or, cannot be found or incapable of giving evidence or, are kept out by any adverse party. No. It seems to me that the conditions laid down in section 34(1) of the Evidence Act (supra), do not apply to Francis Shanu. They do not apply to the defendants and their witnesses in the previous proceedings before Obi, J. No. The evidence by Francis Shanu and the defendants and the defendants’ witnesses, to whom the conditions in the section 34(1) (supra) do not apply, in the hands of any person(s) is hearsay.”

The learned Justices were in no doubt that the evidence taken before Obi J., as contained in exhibit 19 was inadmissible. Akintan JCA said: “It is therefore definitely clear that the evidence credited to the 1st plaintiff, the 2nd defendant and all the 5 witnesses that testified for the 1st defendant (now appellant) in the record of proceeding before Obi J. (exhibit 19) could not be admissible in the later trial before Edokpayi, J., under section 34(1) of the Evidence Act. When, therefore, the learned Judge made use of the said evidence from those people in the course of his judgment in the case, he was using evidence not properly before his Court.” As for Nsofor JCA, having held that section 34(1) of the Evidence Act was not complied with, it is not surprising that he also considered exhibit 19 inadmissible, and expressed it thus: “Before the evidence given in a previous case can be received as substantive evidence of the truth of what it states, all the conditions laid down in the subsection [i.e. subsection (1) of section 34] must be complied with.” In the appeal to this court against the judgment of the court below, the appellants set down two issues for determination, namely: “1. Whether the Court of Appeal decision on admissibility of exhibit 19 in its final judgment is sustainable. 2. Whether the Court of Appeal did not err by allowing the appeal before it.” The respondent cross-appealed and set down the following issues: “1. Whether the Court of Appeal failed to consider several of the complaints of the respondent relating to the evaluation of evidence and if so whether this occasioned a miscarriage of Justice’? 2. Whether the Court of Appeal was correct in refusing the respondent leave to raise the issue of admissibility of the previous evidence of the 1st appellant and the defence witnesses having regard to the material before the court and the submissions made to it’? 3. Whether the Court of Appeal was correct in rejecting the respondent’s application to amend the record of appeal? 4. Having expunged exhibit 19 (the record of the previous evidence of the witnesses that the trial court relied upon) whether the Court of Appeal was correct to order a retrial?”

The cross-appellant also filed a notice of preliminary objection attacking ground 4 of the appellants’ grounds of appeal, that the complaint therein does not arise from the judgment of the court below; and also ground 5, that it raises a matter of mixed law and fact for which leave should have been obtained to file it. I do not intend to set out the said grounds of appeal complained of in full in view of the fact that the preliminary objection does not touch on the central issue in this appeal. But let me say that I agree with the objection in respect of ground 4. The particulars of misdirection alleged in the passage quoted from the judgment of the court below do not arise therefrom or have any bearing therewith. This makes the ground of appeal incomprehensible. As to ground 5, it is in my view worthless. It says: “The Court of Appeal erred in law when it failed to dismiss the appeal.” The particulars then stated, inter alia, that there were findings of fact supported by documentary and oral evidence, that the totality of the evidence was comprehensively evaluated and that there was no basis for allowing the appeal from the judgment of the trial court.

I must say, with due respect, that the ground of appeal as couched is too wide and vague. The so-called particulars in support are not helpful. Particulars of a ground of appeal are meant to elucidate and advance the reason for the complaint in that ground. Furthermore, the said ground 5 is by no means a ground of law. Even if it had not been at large and vague as it is, since no leave was obtained to file it, it would still be defective for incompetence. I therefore strike out grounds 4 and 5. At the same time, issue 2 being too wide, I strike it out as it is no issue fit for deliberation by an appellate court whose duty is to consider in what aspect and manner a court below has been in error, if at all. That should be done by taking specific issues for analysis and discussion and not by considering an issue which seems to encompass or involve every imaginable but unexpressed complaint against a judgment. This apart, the said second issue is not supported by any ground of appeal: see Ugo v. Obiekwe (1989) 1 NWLR (pt.99) 566; A.G. Bendel State v. Aideyan (1989) 4 NWLR (pt.118) 646; Nwosu v. Udeaja (1990) 1 NWLR(pt.125) 188. The sole issue in the main appeal is whether the Court of Appeal decision on the admissibility of exhibit 19 in its final judgment is sustainable. This issue arose from a ruling earlier given by the court below regarding the certified copy of the proceedings before Obi, J., which was admitted by the trial court as exhibit 19. In fact it was on the evidence recorded in that exhibit that the judgment of Edokpayi, J., was entirely based. He did not hear evidence from any witness. At the Court of Appeal the present respondent/cross-appellant prayed for an order by application inter alia – “pursuant to the court’s inherent jurisdiction granting it leave to raise and argue a point of law not raised in the court below, namely, the admissibility and use as evidence in the trial before Edokpayi J. of the testimonies of the 1st plaintiff and the defence witnesses taken before Obi J. in terms of ground 2 of the proposed grounds of appeal contained in the schedule hereto.” The purpose of the application in regard to that prayer was to enable argument to be canvassed at the hearing of the appeal that exhibit 19 was no legal evidence on which the trial court could have acted.

The court below was addressed by the present cross-appellant, in the course of moving that application for leave to file appropriate grounds of appeal, on the need to revisit the admissibility of the said exhibit 19. However, in the leading ruling given by Akintan JCA, the court refused that prayer by saying inter alia: “….as the reasons why the witnesses who gave evidence before Obi, J. could not be called to testify before Edokpayi, J. had been adequately given in the affidavit in support of the motion for the admission of the proceeding in question, this court will not assume that a substantial question of law has been raised by the applicant merely inserting in the ground of appeal that ‘when it had been shown that the said witnesses were unavailable as required by section 34(1) of the Evidence Act.’ It has been shown that the admission of the record of proceeding before Obi, J. was in accordance with the provision of section 34(1) of the Evidence Act 1990. The applicant has therefore failed to establish that the document was improperly received.” Now, when it came to deciding the appeal itself, Akintan JCA took a different view of exhibit 19. As already shown, he held that the document was not legally admissible. It is in that regard the appellants have argued before us that on the authority of Lawal v. Dawodu (1972) NSCC (Vol. 7) 515, the Court of Appeal was not entitled to alter the effect of its own ruling on an issue in the proceeding. Chief Ahamba SAN in the appellants’ brief of argument has highlighted his submission by saying: “Incidentally the issue at stake in that judgment as in the present appeal was the admission of evidence in a previous proceeding under section 34(1) of the Evidence Act. In that case the Supreme Court of Nigeria firmly held the view that in ruling that the transcript of evidence in a previous case which were tendered by the plaintiffs were admissible under section 34(1), the trial judge upheld the plaintiffs claim and thus was not entitled to alter the effect of his own ruling by later holding in his judgment that the previous judgment cannot be regarded as res judicata.” The learned Senior Advocate also cited Nnajiofor v. Ukonu (1985) 2 NWLR (pt. 9) 686. If I may say so here, in Nnajiofor v. Ukonu (supra), Oputa JSC at 706 discussed the principle in Dawodu v. Lawal in regard to issue estoppel. I shall consider it as well. I think it is important not to misconceive what Lawal v. Dawodu (supra) decided in relation to what was regarded as issue estoppel arising from the proceedings at the trial court. In that case, learned counsel for the plaintiffs applied to put in evidence the transcripts of the evidence given in previous legal proceedings in 1900 between the same parties by two witnesses who were proved to have died. Reliance was placed on the provisions of section 34(1) of the Evidence Act. Although the application was opposed, the learned trial judge overruled and admitted the transcripts as exhibits E and J as he was satisfied that the conditions for doing so had been complied with. In his ruling he said: “The suit 1900 relates to Imuwo land which is part of the land being claimed in this present action and it is my view that the evidence of Ajimuti and Alebiosu given in the 1900 case at page 5 of Exhibit ‘J’ and pages 7 and 8 of Exhibit ‘J’ are quite relevant to the matter now in issue in the present case.” As this court observed in that case at page 523 when it came on appeal, the said ruling of the learned trial judge upheld the claims of the plaintiffs that the judgment as contained in the said transcripts as in respect of the same land (or part of it) as was then being litigated before him. This court went further to observe that the learned trial judge in his final judgment in the case later said concerning the same judgment in the 1900 case – “I am unable to accept that that judgment is res judicata as far as the land now being litigated between the plaintiff and the defendant is concerned.” [And then at the end of his judgment he made the point further]. “The judgment of 1900 tendered in this suit cannot be regarded as res judicata between the plaintiffs and the defendants in respect of the land now being claimed by the plaintiffs from the defendants.” It was on these facts this court considered the principle which says that within one cause of action, there may be several issues raised which are necessary for the determination of the whole case; and that the rule is that once an issue has been raised and distinctly determined between the parties, then, as a general rule, neither party can be allowed to fight that issue all over again. This was further reinforced by what was stated in Fidelitas Shipping Co. Ltd. v. V/O Exportchleb (1966) 1 Q.B. 630 at 642 by Diplock L.J., which, when paraphrased is that in the course of proceedings, different issues may arise at separate occasions for a decision with the consequences that follow. These are that where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues.

The parties to the suit are bound by the determination of the said issue. They cannot subsequently in the same suit advance further evidence directed to showing that the issue was wrongly determined. From the principles stated above, there is no doubt that they are about issue estoppel. It is quite elementary that issue estoppel binds the parties concerned as well as the court: see Ukaegbu v. Ugoji (1991) 6 NWLR (pt. 196) 127; Ogbogu v. Ndiribe (1992) 6 NWLR (pt. 245) 40; Ito v. Ekpe (2000) 3 NWLR (pt. 650) 678; Ebba v. Ogodo (2000) 10 NWLR (pt. 675) 387. The same applies to the principle of estoppel per rem judicatam in an appropriate situation. It was this which led this court in Lawal v. Dawodu (supra) to observe inter alia at p.524: “We are clearly of the view that the learned trial judge was not entitled, as he thought he was, to alter the effect of his own ruling on the issue previously decided by him in the course of the same proceedings in favour of the plaintiffs. The judgment, exhibit ‘E’, concerns the land known as Muwo which, according to the learned trial Judge himself, was part and parcel of the land at present in dispute between the parties. That judgment was against the present defendants and was in favour of the present plaintiffs….. It is manifest from his pleadings that the defendant is in this case still claiming Muwo village which is covered by Exhibit ‘F’.” As can be seen in that case, it was not the admissibility of exhibits E and J that was in issue. It was quite clear that section 34(1) of the Evidence Act was complied with before those exhibits were admitted. No issue of the admissibility of those exhibits subsequently arose. It was the effect of the decision reached therein as to who owned the land which was already res judicata that was in issue. He learned trial judge having recognised the effect of res judicata issue in his first ruling, declined subsequently to accept its effect in his final judgment. What he did all through had nothing in connection with the issue of admissibility of the exhibits. This can be seen from that passage from his ruling which I recited earlier on. To support further the fact that it was the issue of res judicata which arose from the said exhibits that this court said the learned trial judge attempted later in his final judgment to give a contrary decision on, I refer to the observation at p.523 as follows: “Before us it was argued by learned counsel for the plaintiffs that the Judge was wrong to disclaim in his judgment what he had expressly upheld by his interlocutory ruling in the course of the proceedings. Learned counsel for the defendants has no answer to this contention and we think that the failure of the learned trial Judge to treat an issue that was clearly res judicata as such is a mistaken view of the law.” But I suggest nothing new if I say there is a world of difference between matters of admissibility of evidence as an issue and matters of estoppel as an issue. It is true that as a general rule a court is not permitted to reverse itself on taking a decision on an issue in the same proceedings. Having so taken a decision, it is either that the court is said to be functus officio on that issue or is bound by it as an issue estoppel. After a court has made an order or given a judgment it becomes functus officio and cannot change or reverse the same except under the very restricted slip rule

SC. 169/1997