3PLR – AVINASH CHANDER MALHOTRA V. BANK OF SINGAPORE LIMITED

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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AVINASH CHANDER MALHOTRA

V.

BANK OF SINGAPORE LIMITED
(FORMERLY ING ASIA PRIVATE BANK LIMITED)

IN THE COURT OF APPEAL OF NIGERIA

ON FRIDAY, THE 7TH DAY OF FEBRUARY, 2014

CA/L/575/2012

(2014) LPELR-22442(CA)

3PLR/2012/23 (CA)

 

BEFORE THEIR LORDSHIPS

SIDI DAUDA BAGE, JCA

RITA NOSAKHARE PEMU, JCA

CHINWE EUGENIA IYIZOBA, JCA

 

BETWEEN

AVINASH CHANDER MALHOTRA – Appellants

AND

BANK OF SINGAPORE LIMITED (FORMERLY ING ASIA PRIVATE BANK LIMITED) – Respondents

 

REPRESENTATION

J.A. Badejo (SAN)

J.D. Okereke Esq. – For Appellant

AND

F.A. Dalley Esq.

D.A. Olude (Mrs.) – For Respondent

 

ORIGINATING STATE

Lagos: Federal High Court (B.F.N. Nyako- Presiding)

 

CONNECTED AREAS OF PRACTICE

  1. Banking and Finance

 

MAIN ISSUES

  1. ACTION – ORIGINATING SUMMONS- when to commence an action by way of Originating Summons
  2. APPEAL – GROUND OF APPEAL- content of ground of appeal complaining of a misdirection or error in law- whether particulars must be separately supplied
  3. COURT – DUTY OF JUDGE- duty to determine the effect of law on a given state of facts
  4. JUDGMENT AND ORDER – DECLARATORY JUDGMENTS- whether enforceable against Defendant
  5. PRACTICE AND PROCEDURE- EVIDENCE –effect of making averments without proof

 

MAIN JUDGMENT

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment):

This is an appeal at the instance of the Appellant, who is appealing the Judgment of Honourable Justice B.F.N. Nyako of the Federal High Court, Lagos delivered in Suit No. FHC/L/CS/881/10 on the 23rd of May 2012.

By Originating Summons filed on the 19th of July 2010, the Plaintiff (Appellant in the present appeal) sought the determination of the following questions and reliefs viz:

(1)    Whether Bank of Singapore Limited (formerly ING Asia Private Bank Limited), a Bank registered in Singapore can carry out banking business in Nigeria without licence duly issued by the Central Bank of Nigeria.

(2)    Whether various visits to Nigeria by officers of the said bank of Singapore Limited to solicit for customers resident in Nigeria who upon being convinced completed account opening forms in Nigeria and placed various deposits with the Defendant are in contravention of the Companies and Allied Matters Act Cap 20 Laws of the Federation of Nigeria 2004, Banking and other Financial Institutions Act Cap B3 Laws of the Federation of Nigeria, 2004 and the Immigration Act Cap 11, Laws of the Federation of Nigeria.

And that if the answers to Questions 1 and 2 are negative and in favour of the Plaintiff, then the Plaintiff seeks the following reliefs:-

(i)     A DECLARATION that all the transactions between the Plaintiff and the Defendant in Nigeria relating to the opening of accounts, placement of deposits and instruction to invest the deposits through various means are illegal, null, void and of no effect;

(ii)    A DECLARATION that all the transactions between the Plaintiff and the Defendant in Nigeria relating to the opening of the accounts, placement of deposits and instructions to invest the deposit through various means are unenforceable by the Defendant;

(iii)   AN INJUNCTION restraining the Defendant by itself, servants or agents whatsoever from harassing, intimidating or threatening the Plaintiff in anyway whatsoever and taking any steps in Nigeria to recover any sum of money with respect to the illegal and unenforceable transaction with the Plaintiff.

AND FOR SUCH FURTHER or other reliefs as this Honourable Court may deem fit to make in the circumstances (pages 3 – 5 of the Record of Appeal).
FACTS WHICH ARE AT THE BOSOM OF THE LOWER COURT BUT RELEVANT TO THIS APPEAL.

Affidavits in support of the Originating Summons and that in reply thereto support that the parties are agreed on certain facts.

That the Respondent is a Bank incorporated under the Laws of Singapore with its registered address at 65 Chulia Street, #09-00 OCBC Centre Singapore 049513.
The Respondent Bank has no licence to practice Banking in Nigeria. Between 2006 and 2008, Mr. Kailash Shivdasani and Mr. Melwyn Dias, (employees of the Defendant/Respondent) and who are not resident in Nigeria, visited Nigeria and solicited for investment deposits from Nigeria residents including the Appellant.
While the Appellant claimed that it was the Respondent who approached him, the Respondent claimed that it was the Appellant who approached them.
It is the Appellant’s story that the two employees met him and persuaded him to open an Account with the Respondent. Some blank documents and other completed documents were received in Nigeria by the Appellant which he completed and returned to the two employees of the Respondent.

In December 2008, the Appellant was informed that his investment in the various securities had become not only unprofitable, but that he had to bear the loss. Moreso, he was told that the loss is far in excess of his investment and pressure began to be brought to bear on him to pay up.

He was harassed, intimidated and threatened by persons claiming to be agents of the Respondent in Nigeria. They threatened to arrest and prosecute him for refusing to repay the alleged debt.

The Respondent had maintained that the Appellant’s account with the Respondent was, at all material times maintained in Singapore and not in Nigeria. That every transaction relating to the account had no relation whatsoever with Nigeria, or any Nigerian Bank. That all transfers of funds and securities from and to the Appellant’s account with the Respondent in Singapore, were via the Appellant’s accounts with Citibank Geneva, UBS Geneva and Deutsche Bank India, all of which were entirely offshore, outside Nigeria.
It is the Respondent’s case that all transactions relating to the account were to exclude involvement with Nigeria or Nigerian Banks, that under the terms of Clause A30 of the Respondent Services Agreement, as incorporated in the account opening forms, both the Appellant and the Respondents agreed to be governed by the Laws of Singapore.

The Appellant, had in the lower Court supported his Originating Summons with an affidavit of 23 paragraphs – (pages 6 – 9 of the Record of Appeal); Plaintiffs (Appellant’s in the present appeal) written address in support of the Originating Summons.

Processes were sought to be served by motion ex-parte on the Respondents outside jurisdiction at Bank of Singapore Limited, 9 Raffles Place # 08-01 Republic Plaza Singapore 048619. (Page 62 of the Record of Appeal) and same was granted vide Enrolled Order of Court dated 27th July 2010 – (pages 70 -71) of the Record of Appeal.

The Defendant (Respondent in the present appeal) had filed a Counter-affidavit in reply to the Plaintiffs (Appellant in this appeal) Originating Summons.
On the 24th of May 2011, the parties adopted their respective written addresses.
The learned trial Judge on the 23rd of May 2012 delivered Judgment and found for the Respondent, finding in essence that

(1)     The transaction between the parties are not illegal

(2)     That the lower Court lacks jurisdiction to entertain the matter because the Defendant is not Nigerian and the transaction is not in Nigeria.

(3)     That the Respondent cannot enforce anything pursuant to this transaction which is not governed by Nigerian Laws.

The result is that the learned trial Judge held that the transactions between the parties are unenforceable in Nigeria and that the contract is not governed by Nigerian Law. Consequently, she declined to declare the transaction illegal under the Nigerian Law, and refused to grant consequential reliefs which would naturally have flowed from her finding that the contract is unenforceable in Nigeria. The Judgment of the lower Court is reflected at pages 428- 440 of the Record of Appeal.

The Appellant is dissatisfied with the Judgment of the lower Court and has consequently filed a Notice of Appeal on the 12th of June 2012 pursuant to the Practice Direction of this Honourable Court encapsulating two (2) Grounds of Appeal – (pages 441 – 444 of the Record of Appeal). Ground No 3 is the omnibus ground.

A cursory look at the Grounds of Appeal, shows that it is bereft of the Particulars of Error complained of, and this ex-facie robs the Grounds of Appeal of any competence in Law.

By virtue of Order 6 Rule 2(2) of the Court of Appeal Rules 2011 it states that;

“Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated”.

The provision is mandatory, and indeed directory. By Order 6 Rule 6 of the Court of Appeal Rules 2011, the Court shall have the power to strike out a Notice of Appeal when an appeal is not competent or for any other sufficient reasons.
Decidedly, the Ground of Appeal, where it alleges misdirection or error of law should clearly state the particulars and the nature of the misdirection or error – ADENIJI V. DISU (1958) SCNLR 408; ONIFADE V. OLAYIWOLA (1990) 21 NSCC (PT. 3) 427; N.I.P.C. LTD VS. THOMPSON (1969) 1 ALL NLR (PT. 1) 138.

An error of law as alleged in the two Grounds of Appeal in this Appeal, is a mistake of the law. lt may mean error of omission. Thus a party can competently appeal against the failure of a trial Court to decide on an issue canvassed before the lower Court; EJIKEME v. AMAECHI (1998) 3 NWLR (PT. 542) 456; OGUNDARE v. OGUNLONSO (1997) 6 NWLR (PT.509) 360.
A Ground alleging misdirection or error in law without showing in what respect, is incompetent and as such worthless. OKORIE V. UDOM (1960) 5 F.S.C. 162; ANYAOKE v. ADI (1986) 6 S.C. 75.

Even where particulars are stated but they do not relate to the Ground of Appeal, it will still leave such grounds bare of particulars and thus incompetent.
The requirement that particulars of error be stated (where there is a question of error of law) is informed by the need for the Respondent, and indeed the Court, to be seized of the particulars of error alleged in the Ground of Appeal to enable the Respondent meet the case of the Appellant and the Court to determine the nature of the error complained of – BANKOLE V. AGBAJE (1966) 1 SCNLR 340; SILENCER & EXHAUST PIPES CO. LTD V. FARAH (1998) 12 NWLR (PT. 579) 624.

In couching a Ground of Appeal, if it complains of a misdirection or error in law, it must contain;

(a)    A quotation of the passage where the misdirection or error is alleged to have occurred- see ADENIJI V. SAKA DISU (1958) 3 FSC 104; AMADI V. OKOLI (1977) S.C. 57.

(b)    The nature of the misdirection or error complained of.

(c)     Full and substantial particulars of the altered misdirection or error-OYEBISI V. GOVERNOR OF OYO STATE (1988) 1 NWLR PT.574) 441.

Regardless of all these, the rules are liberal, so that even though setting out the particulars of the misdirection or error is required, where the Ground of Appeal is couched in such a way, which incorporates or contains particulars of misdirection or error complained of and their nature, it will still be competent, though particulars are not set out under a separate heading: UBA V. ACHORU (1990) 21 N.S.C.C. (PT.3) 526.

Where the Ground of Appeal itself gives adequate or sufficient information as to the nature or content of the error of law complained of, the Court of Appeal would not strike out the ground only for the reason that the particulars were not separately supplied. In other words, where the Ground of Appeal performs the dual role of setting out the ground simpliciter as well as stating the particulars thereof in such a way that both the Court and the Respondent are not misled or there is no misapprehension or ambiguity, the Court of Appeal will be reluctant to strike out the Ground – ADELEKE VS. AJANI (2002) 8 N.W.L.R. (PT.768) 26.

The bottom line is that where the Court can shift from undue reliance on technicalities, it shall do so, to do substantial justice between the parties before it.

It is apt at this juncture to reproduce the Grounds of Appeal as they are in the Notice of Appeal, relating to this Appeal.

GROUND NO. 1

THE LEARNED TRIAL JUDGE ERRED IN LAW WHEN SHE HELD THAT THE TRANSACTION BETWEEN THE PARTIES IN NIGERIA RELATING TO THE OPENING OF ACCOUNTS, PLACEMENT OF DEPOSITS AND INSTRUCTIONS TO INVEST THE DEPOSITS THROUGH VARIOUS MEANS ARE NOT ILLEGAL WHEN:-

(A)    THE PROVISIONS OF THE RELEVANT STATUTES HIGHLIGHTED BEFORE THE LOWER COURT ARE CLEAR AND SUPPORT THE CONTENTION THAT THE TRANSACTION IS ILLEGAL UNDER THE NIGERIAN LAW.

(B)    THE VARIOUS ACTIONS OF THE DEFENDANT WHICH ARE UNCONTROVERTED CANNOT BE DESCRIBED AS TOUTING AND INVITATION TO TH    REAT.

(C)    TOUTING, INVITATION TO THREAT AND EVERY FORM OF SOLICITING FOR BANKING BUSINESS WITHOUT LICENCE TO PRACTICE BANKING IN NIGERIA IS PROHIBITED BY STATUTE.

(D)    IT IS CLEAR FROM THE UNCONTROVERTED FACTS BEFORE THE COURT THAT THE DEFENDANT SOLICITED FOR BANKING BUSINESS AND CARRIED ON BANKING BUSINESS IN NIGERIA WITHOUT PERMIT.
GROUND NO. 2

THE LEARNED TRIAL JUDGE ERRED IN LAW WHEN SHE FAILED TO PRONOUNCE CATEGORICALLY UPON AND/OR GRANT ALL THE RELIEFS SOUGHT BY THE APPELLANT WHEN:.

(A)    IT IS CLEAR THAT THE TRANSACTION BETWEEN THE PARTIES ARE ILLEGAL, NIJLL, VOID AND OF NO EFFECT.

(B)    THE LOWER COURT FOUND THAT THE NIGERIA COURTS LACK JURISDICTION TO ENFORCE THE CONTRACT BETWEEN THE PARTIES IN NIGERIA AND THAT THE RESPONDENT CANNOT ENFORCE THE CONTRACT.

(C)    THE LOWER COURT FOUND CLEARLY THAT THE TRANSACTION BETWEEN THE PARTIES IS NOT GOVERNED BY NIGERIAN LAW.

(D)    THE LOWER COURT HAS UNCONTROVERTED EVIDENCE BEFORE IT THAT THE DEFENDANT IS THREATENING THE PLAINTIFF AND IS ABOUT TO TAKE STEPS IN NIGERIA TO RECOVER MONEY FROM THE APPELLANT IJNDER THE TRANSACTION WHICH HAS BEEN FOUND TO BE UNENFORCEABLE IN NIGERIA.

GROUND NO.3

THE JUDGMENT OF THE LOWER COURT IS AGAINST THE WEIGHT OF EVIDENCE (Pages 441 – 444 of the Record of Appeal).

A close look at the Grounds of Appeal, shows that it is argumentative and narrative. The Court of Appeal frowns on Grounds of Appeal and their particulars (if available) which are couched in such a manner that is merely argumentative. Regardless of any misgivings about how the Grounds of Appeal are couched, it is my view that the Grounds as they are, afford sufficient notice and information to the other side, of the precise nature of the complaint of the Appellant and the consequent issues that are likely to arise in the appeal.

Therefore a Ground of Appeal which satisfies that purpose should not be struck out, notwithstanding that it did not comply with a particular form. This is to do substantial justice and I shall determine this Appeal on that premise.
Learned counsel for the Appellant is however admonished to set out in future, Grounds of Appeal and their particulars in a more elegant way that tallies with the Rules of Court.

The Appellant filed his brief of argument on the 17th of October 2012, out of time, but same was deemed filed on the 8th of October 2013.

The Respondent filed his brief of argument on the 27th of March 2013 out of time, but same was deemed filed on the 8th of October 2013.

The Appellant filed a reply brief on the 18th of October 2013.

In his brief of argument, the Appellant distilled three issues for determination from the Grounds of Appeal. They are:

(1)    WHETHER THE TRANSACTIONS BETWEEN THE PARTIES ARE ILLEGAL UNDER NIGERIA LAW.

(2)    WHETHER THE APPELLANT IS ENTITLED TO THE RELIEFS SOUGHT.

(3)    WHETHER THE PART OF THE JUDGMENT APPEALED AGAINST IS AGAINST THE WEIGHT OF EVIDENCE.

On the part of the Respondent, he distilled two issues for determination in his brief of argument. They are

(1)    WHETHER UPON REVIEWING ALL THE FACTS AND EVIDENCE PRESENTED BY PARTIES BEFORE THE LOWER COURT, THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE HELD THAT THE TRANSACTION BETWEEN THE PARTIES WAS NOT ILLEGAL.

(2)    WHETHER THE APPELLANT IS ENTITLED TO ANY OF THE RELIEFS SOUGHT IN THE NOTICE OF APPEAL.

These issues are an adoption of the Appellant’s issues for determination 1 & 2.
Let me quickly state here that the part of the decision of the lower Court complained of is the

(a)    holding that the Respondent cannot be said to be operating Banking business.

(b)    holding that the transaction between the parties are not illegal in Nigeria.

(c)     failure to categorically grant all the reliefs sought by the Appellant.

On the 21st of January 2014, the parties adopted their respective briefs of argument.

The Respondent stressed that the issue is whether the Appellant can plead illegality to avoid his debts. He submits that there is the issue of locus and the provisions of the contract which must be addressed by this Court.
The Appellant argues Issues 1 and 3 together. Read together, it is whether the transactions between the parties are illegal under Nigeria Law and whether the part of the Judgment appealed against is against the Weight of Evidence.
It is the contention of the Appellant that while the learned trial Judge realized that the contract between the parties is unenforceable in Nigeria, he declined to hold that it is illegal in Nigeria because she explained away the events which took place in Nigeria with the Respondent soliciting for Banking Business in Nigeria as “touting” outside the definition of Banking Business.

He argues that, having found that the contract is unenforceable in Nigeria, the learned trial Judge ought to have granted the 2nd relief sought by the Appellant.
He submits that the learned trial Judge’s finding on illegality of the transaction is erroneous, as same is not supported by the affidavit evidence before the Court.
He submits that Section 1(5)(a) of the Banking and Other Financial Institution Act (BOFIA) is what the learned trial Judge should have construed.
The provision states as follows:-

“For the purposes of this Act, a person shall be deemed to be receiving money as deposits from:-

(a)    the general public as a feature of its business or if it issues an advertisement or solicits for such deposit:

That instead she took cognisance only of Section 66 of BOFIA which provides as follows:

“Banking business means the business of receiving deposits on current accounts, savings account or other similar accounts, paying or collecting cheques, drawn by or paid in by customers, provision of finance or such other business as the Governor may, by order published in the Federal Gazette, designate as banking business.”

He submits that the two provisions i.e Section 1(5) (a) and Section 66, if read together, leads to no other conclusion that “advertising and soliciting for banking business or touting is banking business within Nigeria Law”.
He submits that all parties are agreed, including the learned trial Judge, that the Respondent is not duly incorporated in Nigeria, and has no Banking Licence to operate in Nigeria, which negates the provisions of Section 2 and 8 of BOFIA which has this to say

“No person shall carry on any banking business in Nigeria except if it is a Company duly incorporated in Nigeria and holds a Banking Licence issued under his Act.”

Indeed by the provisions of Section 2(2) of it, it is an offence to transact any banking business without a valid licence under the Act.
By Section 8(1) of BOFIA – except with the prior approval of the Bank, no foreign bank shall operate branch offices or representative offices in Nigeria.
He submits that the practice is that a foreign company must be incorporated as a separate entity in Nigeria before it can carry on business therein – Referring to Sections 54 and 56 of the Companies and Allied Matters Act (CAMA), Section 8 of the Immigration Act, he submits that these Laws prohibit foreigners from practicing a trade or business in Nigeria without permit.

He urges Court to resolve Issues No 1 and 3 in favour of the Appellant.
On Issue No 2, which is whether the Appellant is entitled to the Reliefs sought, he submits that, the Appellant is entitled to all the Reliefs sought.

That Reliefs 1 and 2 which are declaratory in nature will be granted where the Appellant has satisfied the Court by the strength of evidence, that it deserves the reliefs sought.

He submits that the fact that the Respondent solicited for customers and performed banking transactions has engaged in illegality. That it sought to utilize improper means to recover funds.

He contends that the declaratory reliefs sought ought to be granted upon the state of the facts, and to protect the interest of the Appellant. Citing ODUSOTE V. MILITARY GOVERNOR, OSUN STATE (2002) 10 NWLR (PT.776) PG. 566 AT 610; ELENDU V. EKWOABA (1995) 3 NWLR (PT.578) PG.320.
That relief 3, which is that of injunctions, flows naturally from the facts before this Honourable Court.

He submits that the Respondent is disabled from enforcing the contract in Nigeria. That an agreement to carry out an illegal act is void ab initio, and unenforceable, as far as it relates to the transactions done in Nigeria. So much for the submission of the respective parties.

The two issues for determination proffered by the Respondent is an adoption of the issues proffered by the Appellant in this appeal and I shall determine this appeal on the issues for determination of the Appellant in his Brief of Argument.
The subject matter of this Appeal was instituted by Originating Summons.
In NATIONAL BANK OF NIGERIA AND WEMABOD ESTATES LTD V. LADY AYODELE ALAKIJA (1978) 9 – 10 SC. 59 AT 71 Eso J.S.C. observed

“It is our considered view that Originating Summons should only be applicable in such circumstances as where there is no dispute on questions of fact or the likelihood of such dispute. Where for instance, the issue is to determine short questions of construction and not matters of such controversy that the Justice of the case would demand the settling of pleadings, originating summons could be applicable. For it is to be noted that Originating Summons is merely a method of procedure and not one that is meant to enlarge the jurisdiction of the Court.”

RE: KIND MELLOR V. SOUTH AUSTRALIAN LAND MORTGAGES & AGENCY COY 1907 1 CH. 72.

It is my view that, and indeed it is now firmly settled that an originating summons is an unusual method of commencing proceedings in the High Court and it is confined to cases where special statutory provisions exist for its application. It is therefore not advisable to make use of this procedure for hostile proceedings where the facts are in dispute, as in the instant case leading to this appeal. Where contentious issues and question of fact are to be resolved, it is inappropriate to commence an action by way of Originating Summons. AKINSETE V. AKINDUTIRE (1966) 1 ALL NLR 147; NYA V. EDEM (2003) 8 NWLR PT. 669) PG. 349 – See ADEKEYE JSC in PDP V. ABUBAKAR (2007) 3 NWLR (PT.1022)  PG. 575 AT 545. This is just by way of observation, as none of the parties adverted his mind to this fact.

ISSUES 1 AND 3

From the facts of this case, certain facts are discernible. They are that

(1)     The Appellant is an Indian National, but lives at 22, Commercial Road, Apapa, Lagos.

(2)     He is the General Manager of TRIDENT MARINE SERVICES LIMITED.

(3)     He is not a Nigerian Citizen, either by birth or by nationalization.
In paragraphs 3, 4, 5, 6, 7 and 8 of the Affidavit in Support of his Originating Summons he deposed thus

Paragraph 3  “I have come to know the Defendant as a Bank registered in Singapore formerly called ING ASIA PRIVATE BANK LIMITED but now knownas BANK OF SINGAPORE LIMITED.

Paragraph 4 “Sometime in 2006, MR. KAILASH SHIVDESANI and MR. MELYWYN DIAS both of whom ore employees of the Defendant and not resident in Nigeria visited Nigeria and held meetings with various residents including myself in several Hotels, Restaurants and Bars”

Paragraph 5 “These two individual acting for and on behalf of the Defendant between 2006 to 2008 visited Nigeria several times and persuaded several persons resident in Nigeria including myself to open accounts and place deposits with the Defendant’ Bank”

Paragraph 6 “At that time, I was unaware that the Defendant had no licence to perform Banking services or any form of Financial Consultancy whatsoever in Nigeria, particularly as I was persuaded by the above mentioned employees that they have a right to do so”

Paragraph 7 “An account opening form was given to me which I signed in Nigeria”

Paragraph 8 “I also gave instruction for substantial deposits from my entire life savings to be transferred and lodged into the Defendant’ Bank” pages 6 – 9 of the Record of Appeal.

From the above facts, it is apparent that the Appellant entered into some sort of transaction with the Respondent, with his eyes wide open.
The Respondent has no Bank in Nigeria.
The purported Service Agreement contains General terms and conditions applicable to the services of the Respondent. It also contains terms and conditions. The Respondent’s Bank is situate at 9, Raffles Place #08-01 Republic Plaza, Singapore 048619 – page 346 of the Record of Appeal.

By letter dated 14th April 2009, the Appellant was written a letter by Lawyer to the Respondent informing him that banking facilities had been made available to him from time to time at his request. That the Respondent granted, advanced and/or made available to him banking facilities. The said Banking facilities are secured by the Charge – pages 393 – 394 of the Record of Appeal.

Exhibit KS-6 is writ of summons and Statement of Claim issued against the Appellant in the High Court of the Republic of Singapore – pages 396 – 411 of the Record of Appeal. In paragraph 15 of the said Statement of Claim, the Plaintiff (Respondent in this Appeal) claims against the Defendant (Appellant in this Appeal) thus;

(1)    “the sum of US$492,564.00 due and owing in respect of the Banking facilities as at 14 July 2009;

(2)    interest on the outstanding sum of US$492,564.00 at the rate of 2.75% per annum above the Plaintiffs cost of funds, calculated on a monthly rest basis, from 15 July 2009 to the date of full settlement;

(3)    costs and disbursements on a full indemnity basis; and

(4)    such further and/or other relief as the Court deems fit.
Dated this 21st day of July 2009.”

The Respondent was granted leave to serve the Appellant Court processes in Nigeria – page 414 of the Record of Appeal.

From all above, it is apparent that the Appellant had benefited from facilities from the Respondent. None of them is a Nigerian Citizen. They were just doing their thing and in their own way, and indeed in their own terms which has nothing to do with Nigeria or its Laws.

I therefore wonder how the issue of illegality came in. The contract, if any was entered into in Singapore and not in Nigeria. The parties do not have any Banks in Nigeria. There is nothing to show that the Appellant operated a personal account in any Nigerian Bank. All transfers of funds and securities from and to the Plaintiff’s (Appellant) account with the Respondent in Singapore were via the Appellant’s account with Citibank Geneva, UBS Geneva and Deutsche Bank India all of which were offshore, and outside Nigeria.

In Clause A30 of the Respondent’s Service Agreement, and incorporated in the account opening forms, both the Appellant and the Respondent agreed to be governed in accordance with the Laws of Singapore -see page 182 of the Record of Appeal. I shall, for purposes of elucidation reproduce a portion of Clause A30.

“APPLICABLE LAW AND JURISDICTION”

This Agreement shall be governed by, and construed in accordance with Singapore Law……”

Therefore the transaction between the Appellant and the Respondent has nothing to do with Nigeria at all.

I want to believe that the Respondent did not make investments on the Appellant’s behalf without his knowledge. The Appellant was fully aware of the investments he made through the Respondent at all times. It is evident that from the time of opening of his account with the Respondent and at all times thereafter, the Appellant was furnished with statements of account, evidencing each and every investment entered into by him. These investments failed and the Appellant was now asked to pay up the outstanding sum on the investments which he has refused to do. The Appellant has refused to repay loans granted to him by the Respondent despite repeated demand – pages 215 – 216 of the Record of Appeal.

From the Statement of Claim filed against the Appellant in Singapore, it is a fact that the Respondent is not a Company registered in Nigeria, neither does it carry on business in Nigeria (words from its own lips).

The Respondent no doubt was engaged in banking business, but there is no evidence that he has a licence to practice banking in Nigeria.

The Appellant admits that he opened an account with the Respondent with a substantial amount.

The contract in whatever form, (if any) in my view is illegal. Indeed there was no contract in any form entered into in Nigeria, neither was there any execution of any contract in Nigeria. lt is trite that you cannot put something on nothing. The parties cannot fathom a contract where there is none.

Yes, the learned trial Judge did observe that the contract was not enforceable in Nigeria and she was correct indeed. The law is clear that a Judge being the depository of the law, is bound on oath to decide an issue according to the law of the land whether or not his attention is drawn to the statute in question. In other words, a Judge is entitled to determine the effect of law on a given state of facts.

NWADIARO V. SHELL DEV. CO. LTD (1990) 5 NWLR (PART 150) 322; ARABAMBI v. ADVANCE BEVERAGES IND. LTD (2005) 19 NWLR (PT.95) 1 AT 31.

The very facts before the learned trial Judge informed his findings. She, in determining the effect of law on these state of facts, found that the contract (if any) is illegal and unenforceable in Nigeria and she was right.

Whatever the Respondent and his agents did in Nigeria, is at best soliciting for deposits, a practice which is replete now in Nigeria, whereby foreign nationals come over to solicit for funds as deposits. As the learned trial Judge rightly observed, the Respondent engaged in “touting” or “invitation to treat”, under the cover of banking practice.

The Appellant no doubt had benefited from the services of the Respondent. He is not even a Nigerian citizen although he resides here. He cannot benefit from services rendered to him, which he had enjoyed, and thereafter turn around to say that the transaction is illegal. Moreso, Nigerian Courts cannot and would not be allowed to be a safe haven or city of refuge for the Appellant after he had committed atrocities in another Country.

In answer to Issue No 1, one can say unequivocally that there is no transaction between the parties entered into in Nigeria to be declared illegal. The question of unenforceability of the contract is therefore of no moment. Ipso facto in answer to Issue No 3, the part of the Judgment appealed against is not against the weight of evidence.

As rightly postulated by the Respondent in paragraph 4:31 of his Brief of Argument, the account opening process involved a series of transactions involving several correspondence between the parties, culminating in the final act of account opening, and receipt of deposit, being concluded at the Respondent’s offices in Singapore.

If anything, the applicable law to the contract loan was that of Singapore. There is no evidence that money was remitted to the Appellant in Nigeria.
In Banking, account opening process is concluded where the Bank is situated and not where the process is initiated. It is my view that the alleged act of initiation by the Appellant in Nigeria is inconceivable simply because he admits to paying the deposit by way of transfer from his non Nigeria Bank outside Nigeria to the Respondent in Singapore.

The argument of the Respondent about the illegality of the contract is innocuous, simply because it is a non-issue. There was no contract in Nigeria’ Therefore no illegality obtains. You cannot put something on nothing.

Issues No 1 and 3 is answered in the negative and they are resolved in favour of the Respondent and against the Appellant.

ISSUE NO 3:
Having held that there was no contract entered into in Nigeria by the parties, the reliefs sought by the Appellant becomes unobtainable by operation of law. There is no evidence in support of the averments in the Originating Summons instituted by the Plaintiff/Appellant (in the lower Court). The Appellant had failed to establish enough evidence to enable the Court grant the reliefs sought and the learned trial Judge was right in refusing to grant same – A-G. ANAMBRA STATE v. A-G FEDERATION 2005 9 NWLR PT. 931 AT 572.

It is trite that a party must make out his case by the best available evidence. Therefore, where averments are just made, without proof, then they must be discountenanced for lack of proof. The Courts do not make an order in vain.

Declaratory Judgments merely proclaim the existence of a legal relationship and do not contain any order which may be enforced against the Defendant – OKOYA V. SANTILLI (1990) 2 NWLR (PT.131) 172 AT 196; CARRENA V. AKINLASE (2009) 14 NWLR (PT.1107) 262 AT 291.
This issue is resolved in favour of the Respondent and against the Appellant. I find no reason to disturb the decision of the lower Court, but to say that this Appeal lacks merit and is one that ought to be dismissed and same is hereby dismissed.

The answer to the two questions in the Originating Summons filed on the 19th of July 2010 is in the negative and the reliefs sought therein are hereby refused.
The Judgment of Hon. Justice B.F.M, Nyako in Suit No. FHC/L/CS/881/10 delivered on the 23rd of May 2012 is hereby affirmed.
N30,000 costs in favour of the Respondent.

SIDI DAUDA BAGE, J.C.A.:

I have had the privilege of reading in draft the lead Judgment just delivered by my learned brother RITA NOSAKHARE PEMU, JCA.
I agree with the reasoning and conclusion reached therein and have nothing extra to add.

This appeal lacks merit and ought to be dismissed; same also is hereby dismissed by me. I too hereby refused the reliefs sought therein. The judgment of Hon. Justice B.F.M. Nyako in Suit No: FHC/L/CS/881/10 delivered on the 23rd of May, 2012 is hereby affirmed. N30,000 costs in favour of the Respondent.

CHINWE EUGENIA IYIZOBA, J.C.A.:

I read before now the judgment just delivered by my learned brother, RITA NOSAKHARE PEMU, JCA. I agree that the appeal lacks merit. The simple facts that gave rise to this appeal is that some officials of Bank of Singapore Limited formerly ING Asia Private Bank Ltd came to Nigeria, held discussions with the appellant which eventually culminated in the Appellant completing bank opening documents in Nigeria for the opening of an offshore account in Singapore. At the time of the transaction, the Appellant was not in any doubt that everything done was for the purpose of opening an off shore account in Singapore. There was no evidence that any money was received in Nigeria for payment into the Appellant’s newly opened Singapore account. Indeed the Appellant’s statements of account at pages 335 – 343 of the Records of appeal show that most lodgments in the account were from the Appellant’s other off shore accounts in other countries. After a few years of operating the account, the account ran into debit. When the Respondent bank sued the Appellant in Singapore to recover the overdue debt, the Appellant now filed a suit by originating summons in the Federal High Court seeking inter alia a declaration that all the transactions between the appellant and the Respondent in Nigeria relating to the opening of the account were illegal, null, void and of no effect. The Appellant premised the contention on the ground that what the officials of the Respondent did by visiting Nigeria, soliciting for accounts and getting people to complete account opening forms in Nigeria amounted to carrying on banking business in Nigeria without license duly issued by the Central Bank of Nigeria. The Appellant wanted the Federal High Court to declare all the transactions in Nigeria relating to the opening of the account, placement of deposits and instructions to invest the deposits through various means unenforceable by the Respondent and he also wanted the Federal High Court to grant him an injunction restraining the Respondent and its servants and agents from harassing, intimidating and taking any steps in Nigeria to recover any sum of money with respect to the illegal and unenforceable transaction. The Respondent had challenged the mode of commencement of the suit by originating summons in view of the many averments in the affidavit which they had strenuously contested. The learned trial Judge was of the view that the real issue for determination was whether the actions taken by the Respondent in discussing with the appellant in Nigeria the opening of an account in Singapore, the completion of the account opening forms by the Appellant in Nigeria and the opening of the account with those forms in Singapore amounted to doing “banking business” in Nigeria as defined in the Bank and Other Financial Institutions Act (BOFIA). To that extent therefore the learned trial judge felt it was of no moment whether the suit was commenced by originating summons or by writ of summons. In other words she did not consider the disputed facts necessary for the determination of the suit. After examining the definition of “banking business” in BOFIA, the learned trial Judge had no difficulty in coming to the conclusion that the activities of the Respondent did not amount to doing banking business in Nigeria. I am in total agreement with the learned Judge. Pats Acholonu JSC of blessed memory had in the case of S.B.N. Ltd v. De Lluch [2004] 18 NWLR (Pt, 505) 341 in his characteristic manner waded through various dictionaries, English authorities and the common law in search of the meaning of the phrase “connected with or pertaining to banking”. At the end he zeroed in on the definition of banking business in Section 61 of the Banks and Other Financial Institutions Decree No. 25 of 1991 which is identical with the definition in Section 66 of BOFIA considered by the learned trial Judge. The learned trial judge was absolutely correct in her view that the Respondent was not involved in any banking business in Nigeria. No deposits were received in Nigeria. The Respondent does not operate any current account, savings account or any such similar account in Nigeria. All they did was discuss the opening of account in Singapore. The necessary bank opening forms were completed in Nigeria and the forms were taken back to Singapore for the opening of the account. How can that amount to doing banking business in Nigeria? As the learned Judge humorously observed, all they did was save the Appellant the trouble of travelling to Singapore to open the account. I agree with my learned brother Pemu JCA that there is no reason to disturb the decision of the lower court. I also consequently find no merit in this appeal. I dismiss it and I abide by the consequential orders in the lead judgment.

 

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