(2018) LPELR-45310(CA)

Transcription

1 EPE RESORTS & SPA LTD v. UBA PLC CITATION: TIJJANI ABUBAKAR In the Court of Appeal In the Lagos Judicial Division Holden at Lagos ON THURSDAY, 5TH JULY, 2018 Suit No: CA/L/838/16 BIOBELE ABRAHAM GEORGEWILL Before Their Lordships: Justice, Court of Appeal Justice, Court of Appeal ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice, Court of Appeal EPE RESORTS AND SPA LIMITED UNITED BANK FOR AFRICA PLC Between And - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. ACTION - LOCUS STANDI: What a party must show to establish locus standi "The issue of locus standi has been judicially pronounced upon by the Supreme Court and this Court in a plethora of decisions; I shall refer to a few. In JITTE & ANOR Vs. OKPULOR (2015) LPELR (SC) Pg.19, Paras.E-F the Supreme Court held that: "what the plaintiff needs to show in order to establish that he has locus standi in a case is, sufficient interest in the matter in controversy". In AL-HASSAN & ANOR vs. ISHAKU & ORS (2016) LPELR (SC) Pg.30, Paras. C - E, the Supreme Court per my lord RHODES-VIVOUR JSC held that: "...The rule about locus standi developed primarily to protect the Courts from being used as a playground by professional litigants, or, and meddlesome interlopers, busybodies who really have not real stake or interest in the subject matter of the litigation." See also the decision of ARIWOOLA JSC in BAKARE & ORS VS. AJOSE-ADEOGUN & ORS (2014) LPELR (SC) Pg.33-34, Paras. F - E where my lord held that: "... This Court has maintained on locus standi that a plaintiff, to enable him invoke the judicial power of the Court must show sufficient interest or threat of injury he would suffer which is being sought to be protected. "My lord further held at Pg , Paras E - A of BAKARE & ORS vs. AJOSE-ADEOGUN & ORS (supra) that: "...in the determination of locus standi the plaintiffs statement of claim should be the only process that should be considered or should receive the attention of the Court..."Per ABUBAKAR, J.C.A. (Pp , Paras. A-B) - read in context

3 2. ACTION - LOCUS STANDI: Guiding principles on locus standi "...It therefore follows that, if repayment is due to the Respondent, and the Respondent is given such a wide power to demand repayment of the loan or alter the terms of the loan at any time, the Respondent naturally has the locus standi to bring an action to demand repayment of the loan. In the instant case, the Respondent in my view has shown by the Statement of Claim and the accompanying processes that the Respondent has sufficient interest to confer on it the locus standi to institute this action and sue for recovery of the loan received by the Appellant; the Respondent pleaded in the Statement of Claim at pages 3-5 of the Records of Appeal that it has demanded the loan facility and that the Appellant has refused and is unwilling to liquidate the sum unless compelled by the lower Court. The Supreme Court in CHUKWU & ANOR Vs. INEC & ORS (2014) LPELR-22221(SC) Pg.43, Paras. E - G said as follows: "... I agree as submitted by the 1st respondent's counsel that the law on locus standi is not static and that the circumstances of each case are to be considered. Hence, what constitutes a legal right, sufficient or special interest adversely affected will, of course, depend on the facts of each case... Therefore each case should be considered on its merit and peculiar facts." See also A.G., LAGOS STATE Vs. EKO HOTELS LTD & ORS [2005] NWLR (Pt.1011) 378 (2005) LPELR-3161 (SC) Pg.75, Paras. B-G."Per ABUBAKAR, J.C.A. (Pp , Paras. D-E) - read in context

4 3. ACTION - LOCUS STANDI: What the Court considers in determining whether a plaintiff has locus standi "Just to further supplement my stand, let me add that this Court is also guided by the decision of the Supreme Court per PATS ACHONOLU JSC in LADEJOBI & ORS Vs. OGUNTAYO & ORS [2004] 18 NWLR (Pt.904) 149;(2004) LPELR-1734 (SC) Pg , Paras. E - E where is lordship held that: "For a Court to normally strike out an action or the names of the prominent members of a class that institute an action on the ground that there is no locus standi is a grave matter that requires utmost judicial careful appraisal and understanding and reflection of the empirical facts Placed before it. To strike out the section or the names of the principal members who institute the section without a thorough assessment of the claim and subjecting the contents of the pleadings to merciless scrutiny is a very serious matter which on the surface of it seems to show that there is an element of using a short circuit method to determine a case without at least the Court getting into the nitty gritty of the matter, and rather to peremptorily dismiss or strike out a case on the altar of locus standi..." Restriction of access to Court is detestable and must not be encouraged unless the reasons for so doing are so compelling, Courts must be circumspect in restricting access to Court, whenever there is challenge to locus standi, the Court must look at the grounds for the challenge so that a litigant who has right of access is not unduly shut out of access to the Court house. I will still revisit my lord PATS-ACHOLONU JSC in LADEJOBI & ORS VS. OGUNTAYO & ORS (Supra), my lord continued as follows: "It is important to bear in mind that ready access to the Court is one of the attributes of a civilized legal system, and it will amount to setting the clock back at this stage for any Court to dismiss or strike out an action based on the pleading without carefully analyzing the averments and ensuring that there is no nexus. Besides, I make bold to say that it is dangerous to limit the opportunity for one to canvass his case by rigid adherence to the ubiquitous principle inherent in locus standi which is whether a person has the stand in a case... The Court should exercise utmost caution in throwing out a case on the issue of locus standi." The Lower Court cannot be faulted in giving judgment in favour of the Respondent considering the evidence available before it. Exhibit D1, B3, B, B1, 82 and H confirmed that the Appellant received the loan and is unequivocally indebted to the Respondent. In the circumstance therefore, the second issue is resolved in favour of the Respondent."Per ABUBAKAR, J.C.A. (Pp , Paras. F-A) - read in context

5 4. CONTRACT - WRITTEN CONTRACT: Duty of Court when considering the terms in a written contract "The law is settled that in construing the written agreement between parties, the document must be read as a whole and parties or the Court will not be permitted to pick and choose portions of the documents on which they will place reliance to the neglect of other parts of the same document. See INTERNATIONAL STANDARD SECURITIES VS. UNION BANK OF NIGERIA PLC (2009) LPELR-8788 (CA) Pg. 32, Paras. D - E and WILLIAMS Vs. WILLIAMS (2014) LPELR-22642(CA) Pg. 31, Paras. C - G this Court held that: "...in a given document, contract or enactment, the principle is that the documents, contracts or enactment must be read as a whole and not in isolation by clauses or sections..." The purpose of construing the entire contract is to discover and give effect to the true intention of the parties. In ADIELE IHUNWO vs. JOHNSON IHUNWO (2013) LPELR (SC) Pg.41-42, Paras. E - B, the Supreme Court of Nigeria held as follows: "The meaning to be placed on a contract is that which is the plain, clear and obvious result of the terms used in the agreement... when constructing documents in dispute between the parties, the proper course is to discover the intention or contemplation of the parties and not to import into the contract ideas not potent on the face of the document... where there is a contract regulating any arrangement between the parties, the main duty of the Court is to interpret the contract to give effect to the wishes of the parties as expressed in the contract document... In the construction of documents, the question is not what the parties to the document may have intended to do by entering into that document, but what is the meaning of the words used in the document... However, where the meaning of words used is not clear, the Court will fall back on the intention behind the words." See also ARCHIBONG Vs. FIRST BANK OF NIGERIA PLC (2014) LPELR (CA) Pg.29-31, Paras. D - A and UBA Vs. NEW TARZAN MOTORS LTD (2016) LPELR (CA) Pg Paras. G - C."Per ABUBAKAR, J.C.A. (Pp , Paras. B-F) - read in context

6 5. CONTRACT - WRITTEN CONTRACT: How does the court determine the issues before it where a contract involves several documents "In the instant case, Exhibits B, B1, B2 and H contained at pages 91, 94-95, 96 and respectively were tendered by the Respondent before the Lower Court to confirm the indebtedness of the Appellant to the Respondent. Contrary to the Appellant's contention in the Reply Brief that only Exhibit B3 should be considered while Exhibits B, B1, B2 and H should be ignored, the Lower Court was right in considering the said Exhibits B, 81, 82 and H. See BFI GROUP CORPORATION Vs. BUREAU OF PUBLIC ENTERPRISE (2012) LPELR-9339 (SC) where FABIYI JSC held that the Lower Court had an abiding duty to scrutinize all the series of documents and bonds to determine whether there is a contract between the parties. See also ANIMASHAUN & ANOR vs. OGUNDIMU & ORS (2015) LPELR (CA) pg. 19, paras. B - E and RAINSON INDUSTRIES LIMITED VS. ABIA STATE COMMISSIONER FOR HEATH AND SOCIAL WELFARE & ORS (2014) LPELR (CA) Pg.26, paras. C - F where this Court held that: "It is settled that when a contract is contained in a series of documents or letters or Correspondences, the Court is under a duty to consider the whole of what has passed between and the conduct of the parties. Indeed, it is not the duty of the Court to determine issues on the basis of one document only..."per ABUBAKAR, J.C.A. (Pp , Paras. F-G) - read in context

7 TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the Federal High Court, sitting in the Lagos Division, delivered by I. N. Auta CJ. on the 11th day of March, 2016 in Suit No: FHC/L/CS/131/14 which is contained at pages of the Additional Records of Appeal. The Respondent in this appeal as Plaintiff at the Court below brought an action seeking to recover loans granted to the Appellant, upon being served the processes the Appellant as defendant immediately filed notice of preliminary objection on the 28th May 2014, challenging the competence of the suit on the ground that the subject matter did not fall within the jurisdiction of the trial Court as set out in Section 251 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Appellants objection was then dismissed by the Lower Court, the dismissal prompted the Appellant to file statement of defense, the suit was eventually heard and determined in favour of the Respondent, judgment was delivered on the 11th day of March Appellant became aggrieved and therefore filed an Amended Notice 1

8 of Appeal on the 13th day of October, 2017 premised on four (4) grounds of appeal; the Amended Notice of Appeal was deemed as properly filed and served on the 18th day of April, The Appellant s Brief of Argument was filed by I. O. Muftau Esq. on the 13th day of October, The Appellant's counsel also filed a Reply Brief on the 1st day of November, The Respondent's Brief on the other hand was filed by learned counsel Chukwudi Enebeli Esq. on the 25th day of October, All the Briefs filed by the parties were deemed as properly filed and served on the 18th day of April, The Appellant nominated two issues for determination, they are reproduced as follows: 1. Whether the Lower Court was wrong by holding that the Respondent had locus standi to institute the suit for recovery of the loan facility, when the same Court had held that the Respondent was a guarantor for the loan? (Grounds 1, 3 and 4 of the Notice of Appeal. 2. Whether the Lower Court was wrong by failing to dismiss the Respondent's suit for lack of jurisdiction and for being improperly constituted? (Ground 2 of the Notice of Appeal) The Respondent on the other hand equally

9 2

10 distilled two issues for determination reproduced as follows: 1. Whether the Honorable Lower Court was right in assuming jurisdiction and holding that the Respondent had the locus standi to institute the action before it. If Yes, 2. Whether the Honorable Lower Court was right to enter judgment in favour of the Respondent going by the evidence before the Court. Grounds 1, 2, 3, & 4. APPELLANT'S SUBMISSIONS Learned counsel for the Appellant, while submitting on the first issue argued that the Respondent herein was not the creditor or financier of the loan in question to the Appellant and that the said loan advanced to the Appellant was sourced from European Investment Bank (EIB) through the Respondent. Counsel referred to Exhibit B3 at page 8 of the Records of Appeal and the testimony of the Respondent's sole witness under cross-examination to argue that the Respondent only acted as a Local Arranger/Guarantor of the loan, as well as an agent of EIB in advancing the loan to the Appellant; and that the Lower Court at page 137 of the Records of Appeal confirmed that the Respondent is a Guarantor to the loan. Learned 3

11 counsel contended that having found that the Respondent is a Guarantor to the loan, it was wrong for the Lower Court to have held that the Respondent had the locus standi to institute the suit against the Appellant for the recovery of the loan. Counsel submitted that only EIB, as the Creditor and Financier of the loan, could have rightly instituted the suit for the recovery of the loan. Learned counsel referred to the definition of Financier and Arranger/Guarantor in the Black's Law Dictionary, 6th Ed. Pg. 631; Webster's New Explorer Encyclopedia Dictionary, Pg. 687 and Thomas Reuters Practical Law to contend further that the duties of the Respondent and EIB in the transaction were clearly set out in Exhibit B3. Counsel further referred to CROWN FLOUR MILLS LTD Vs. OLOKUN [2007] All FWLR (Pt.393) Pg. 24 at 62, Paras. G - H (CA) to submit that a guarantor is directly liable to the creditor and cannot sue the principal debtor except to recover any amount which the guarantor has paid to the creditor. Counsel made reference to SOUTH TRUST BANK & ORS vs. PHERANZY GAS LIMITED & ORS (2014) LPELR (CA) and further submitted for the Respondent to 4

12 have the locus standi to institute the suit against the Appellant to recover the loan, it must show that the Respondent had paid the loan to the creditor, EIB. Learned counsel again contended that the Respondent is not a proper party to institute this suit because its right to do so has not materialized; that there is no evidence before the Lower Court indicating that EIB has recovered the loan from the Respondent which would have given the Respondent the right to sue as a guarantor to recover the fund it had paid to EIB. Counsel submitted that the suit was instituted without the requisite locus standi and that the Lower Court adjudicated on the suit without jurisdiction and consequently, the entire proceedings constitute a nullity. Learned counsel referred to the testimony of the Respondent's sole witness under cross-examination at page 118 of the Records of Appeal to further contend that apart from being the guarantor of the loan, the Respondent also acted as EIB's agent having arranged the transmission of the loan from EIB to the Appellant. Learned counsel referred to Exhibit B3 at page 9 of the Records and relied on EKONDO COMMUNITY BANK 5

13 LIMITED Vs. ANIETING (2013) LPELR (CA) Pg. 15, Paras. B - D and NWARIE Vs. ADAKWA (2016) LPELR (CA) to submit that parties cannot renege on their position, reached by an agreement unless there is a mutual agreement to such effect; and that the Court or any other party cannot question the intentions of the parties to an agreement. Counsel referred to Section 169 of the Evidence Act, 2011; ATTORNEY-GENERAL, RIVERS STATE VS. ATTORNEY-GENERAL, AKWA IBOM STATE & ANOR [2011] 8 NWLR (Pt.1248) Pg. 31 at 157, Para. B - E; Pg. 218, Paras. C - E to argue that the Respondent is estopped from representing itself as the Creditor having represented itself as the Guarantor/Local Arranger in the loan transaction as seen in Exhibit B3. Learned counsel relied on DADA & ORS vs. OLAJIDE (2009) LPELR-CA/L/77/2005 and C. N. EKWUOGOR INVESTMENT (NIG) LTD vs. ASCO INVESTMENT LTD (2011) LPELR-3899 (CA) to further argue that the Respondent, as an agent of EIB - a disclosed principal, has no locus standi to institute or maintain an action in law except where the agent has been given a power of Attorney by the disclosed principal which allows him to act on behalf the Principal in which 6

14 case, the Agent must file such action in the name of the Principal. Counsel made reference to NGERE & ANOR Vs. OKURUKET & ORS (2014) LPELR (SC) and submitted that the Lower Court erred in law and the error occasioned a miscarriage of justice by holding that the Respondent had locus standi to institute this action. Learned counsel submitted that the learned trial Judge ought to have dismissed the matter having held that the Respondent was a Guarantor of the loan. Counsel urged this Court to resolve this issue in favour of the Appellant. On the second issue, learned counsel for the Appellant referred to MADUKOLU & ORS Vs. NKEMDILIM (1962) LPELR (SC) Pg , Paras. D - A; BEST VISION CENTER LIMITED Vs. UACN PDC PLC [2003] 13 NWLR (Pt. 838) Pg. 594; IKEME Vs. ANAKWE [2000] 8 NWLR (Pt.669) pg. 484; PEENOK LIMITED Vs. HOTEL PRESIDENTIAL [1983] 4 NCLR 122; and EHIDIMHEN Vs. MUSA [2000] 1 NWLR (Pt.669) Pg. 540 to contend that the competence of the parties before the Court is one of the preconditions for activating the jurisdiction of any competent Court; and that in the instant case, the Respondent not being the 7

15 Creditor, that is EIB, and having not obtained a Power of Attorney from the Creditor or show that it has validly purchased the loan from EIB or that it has discharged the loan as a Guarantor to EIB, was not a proper party to institute the action. Learned counsel referred to ALAFIA & ORS Vs. GBODE VENTURES NIGERIA LTD & ORS (2016) LPELR (SC); AJAYI Vs. ADEBIYI & ORS (2012) LPELR-7811 (SC) to further submit that the Lower Court lacked the jurisdiction to entertain this suit which was instituted by a party without locus standi. Counsel referred relied on MACFOY Vs. UAC (1962) AC 152; OLABOMI VS. OYEWINLE & ORS (2013) LPELR (SC) and AG ANAMBRA Vs. AG FEDERATION [1993] 5 NWLR (Pt.302) pg.692 at 737, para. A to contend that all the proceedings conducted before the Lower Court and the Judgment in this suit amount to a nullity on the ground that the Lower Court wrongly assumed jurisdiction. Learned counsel submitted that the Lower Court was wrong having failed to dismiss the Respondent's suit for want of jurisdiction; Counsel urged this Court to resolve this issue in favour of the Appellant, allow this appeal, and to set aside the judgment of the Lower Court. 8

16 RESPONDENT'S SUBMISSION Learned counsel for the Respondent argued that parties are ad idem on the fact that the Respondent issued an offer letter Exhibit B3 to the Appellant; that credit facilities to the tune of $3,000,000 (Three Million Dollars) was advanced to the Appellant on the 16th November, 2007 as shown by Exhibit D1; that EIB does not have a branch anywhere in Nigeria as testified by DW1 at page 123 of the Records of appeal; that service of the loan is through the Respondent's Bank; and that the Appellant has outstanding balances in respect of the loan granted by Exhibit B3. Counsel referred to FAWEHINMI vs. PRESIDENT FRN [2007] 14 NWLR (Pt.1054) Pg.275; ADETONA Vs. ZENITH BANK PLC [2011] 18 NWLR (Pt.1279) Pg.627; OWODUNNI Vs. REGISTERED TRUSTEES, C.C.C. [2000] 10 NWLR (Pt.675) Pg. 315; NYAME Vs. FRN [2010] 7 NWLR (Pt.1193) Pg.344; BEST VISION CENTER LIMITED Vs. UACN PDC PLC [2003] 13 NWLR (Pt.838) Pg. 594; BEWAJI Vs. OBASANJO [2008] 9 NWLR (Pt.1093) Pg. 540; UBA Vs. BTL [2005] 19 NWLR (Pt.1013) Pg. 51 and AMAH Vs. NWAKWO [2007] 12 NWLR (Pt.1049) pg.522 to submit that the issue of locus standi is subject to the facts of each 9

17 case, and that a Plaintiff will have locus standi in a matter where he has a special interest or if he can show that he has sufficient interest in the subject matter of the case. Learned counsel further submitted that a person has the locus standi to institute an action if he is able to show to the satisfaction of the Court that his civil rights and obligations have been or are likely to be infringed upon. Counsel referred to OJUKWU Vs. OJUKWU [2008] 18 NWLR (Pt.1119) Pg. 439; OKONKWO Vs. N.U.C. [2013] 15 NWLR (Pt.1378) Pg. 482; IMADE Vs. MIL. ADM. EDO STATE [2001] 6 NWLR (Pt.709) Pg.478; LAWAL Vs. SALAMI [2002] 2 NWLR (Pt.752) Pg.687 and A.G. LAGOS STATE Vs. EKO HOTEL LTD [2006] 18 NWLR (Pt.1011) pg. 378 to contend that the tests for determining if a person has locus standi are that the action must be justifiable and that there must be a dispute between the Parties. Learned counsel argued that the Appellant has not in any way denied receiving the loan, but that the Appellant's case is that by Exhibit B3, the Respondent is not entitled to recover the loan. Counsel relied on BFI GROUP CORP Vs. B.P.E. [2012] 18 NWLR (Pt.1332) Pg.209; OMEGA BANK 10

18 NIG PLC Vs. O.B.C. [2005] 8 NWLR (Pt.928) Pg.547 and BAKER MARINE (NIG) LTD Vs. CHEVRON (NIG) LTD [2006] 13 NWLR (Pt.997) pg. 275 to submit that where a commercial agreement comes before the Court for construction, the Court is to appraise the entire contract and all documents relating thereto in order to give effect to the intention of the parties. Learned counsel referred this Court to Exhibits B3 and D1 at pages of the Records of Appeal to submit that Exhibit B3 emanated from the Respondent and that the loan was offered to the Appellant upon approval of the request by the Appellant for the loan from the Respondent. Learned counsel referred to the finding of the Lower Court at pages of the Records of Appeal that only the Respondent and Appellant signed Exhibit B3; and that Clause 23 of Exhibit B3 stated that 'notwithstanding' the terms and conditions of the offer, the Respondent reserves the right to demand immediate repayment with due notice to the Appellant. Counsel cited SARAKI Vs. FRN [2016] 3 NWLR (Pt.1500) Pg. 531 at 513 and NDABA NIG LTD Vs. UACN PDC PLC [2003] 13 NWLR (Pt. 838] Pg. 594 to argue that the implication of the word 'notwithstanding' 11

19 as used in Clause 23 of Exhibit B3 is that the said Clause supersedes all other clauses to the extent that the Respondent has the right to demand repayment of the loan from the Appellant. Learned counsel further referred to the 'late payment' clause in Exhibit B3 to submit that the parties' agreement was that payment is to be made to the Respondent; and that by Exhibit E on page 20 of the Records of Appeal the Respondent demand repayment of the loan from the Appellant in accordance with Clause 23 of Exhibit B3. Learned counsel placed reliance on PTF Vs. WPC LTD [2007] 14 NWLR (Pt.1055) Pg.478 at 495; UNION BANK NIG. LTD Vs. OZIGI [1994] 3 NWLR (Pt.333) Pg.385 and BOOKSHOP HOUSE vs. STANLEY CONSULTANTS [1986] 3 NWLR (Pt.26) pg.87 to submit that in the interpretation of a contract, the Court must confine itself to the true intention of the parties at the time the contract was entered into. Counsel referred to Exhibit D1 and the testimony of DW1 under crossexamination that the Appellant received the loan from the Respondent and has been repaying the loan to the Respondent and not EIB. Counsel further referred to Exhibits B, B1, B2 and H 12

20 contained at pages 91, 94-95, 96 and respectively, to submit that these exhibits which DW1 confirmed to have emanated from the Appellant all confirm the indebtedness of the Appellant to the Respondent and not to EIB. Learned counsel submitted that the Lower Court was therefore right in its finding at pages of the Additional Records of Appeal which the Appellant did not appeal against; relying on AWODI Vs. AJAGBE [2015] 3 NWLR pg. 578 and DABUP vs. KOLO [1993] 9 NWLR (Pt.317) Pg. 254, counsel submitted that the Appellant is bound by the said finding of the Lower Court and cannot be heard to question it in this appeal. Learned counsel cited NEW RES INT L LTD Vs. ORANUSI [2011] 2 NWLR (Pt.675) pg. 293 to further contend that a contract affects only the parties to it and cannot be enforced by or against a person who is not a party even if the contract is made for his benefit on his behalf or purports to give him the right to sue. Counsel relied on F.B.N. Vs. ABRAHAM [2008] 18 NWLR (Pt.1118) pg.172 To argue that the EIB is not privy to the agreement in Exhibit B3; that the Appellant has not denied indebtedness; and that the Appellant wants to evade a lawful 13

21 debt on the excuse that the Respondent has no locus standi when at the same time, the EIB would not have the locus standi to institute this action not being privy to the loan contract. Counsel referred to ADEKUNLE Vs. ADELUGBA [2011] 16 NWLR (Pt.1272) pg.154 at 179 to urge this Court to uphold the trial Court's finding that the Respondent has disclosed sufficient legal interest to institute the instant action. Learned counsel referred to OMOWORARE Vs. OMISORE [2010] 3 NWLR (Pt.1180) Pg.58; AGBULE Vs. WR. & P CO. LTD [2013] 6 NWLR (Pt.1350) Pg. 318; ADEKEYE Vs. ADESINA [2010] 18 NWLR (Pt.1225) Pg.449; OJIOGU Vs. OJIOGU [2010] 9 NWLR (Pt.1198) PG.1; BALOIL (NIG.) LTD Vs. NAVCON (NIG) LTD [2010] 16 NWLR (Pt.1220) pg.619; S.B.N. PLC Vs. C.B.N. [2009] 6 NWLR (Pt.1137) Pg.237; OGBOGU Vs. UGWUEGBU [2003] 10 NWLR (Pt.827) Pg.189; U.B.A. PLC Vs. S.A.F.P.U. [2004] 3 NWLR (Pt.861) Pg.515; BUHARI Vs. OBASANJO [2005] 13 NWLR (Pt.941) Pg.1; OSOH Vs. UNITY BANK PLC [2013] 9 NWLR (Pt. 1358) Pg. 1; OKHUAROBO Vs. AIGBE [2002] 9 NWLR (Pt.771) Pg.478 at 495 PTF Vs. WPC LTD [2007] 14 NWLR (Pt.1055) P9.29; R.T.S.L.B.C. Vs. NNIKOL RES. LTD [2015] 14 NWLR 14

22 (Pt.1479) Pg.391 and OSEMWENGIE vs. J.S.C., EDO STATE [2015] 5 NWLR (Pt.1453) Pg.508 to submit that parties are bound by their pleadings; that it is the pleadings that determine the issues before the Court; that parties must limit themselves to the issues raised in their pleadings; and that evidence adduced on facts not pleaded are inadmissible and go to no issue. Learned counsel referred to MAKWE Vs. NWUKOR [2001] 14 NWLR (Pt.733) Pg. 356 at 383 and ODOGWU Vs. ODOGWU [1990] 4 NWLR (Pt.143) Pg. 224 to argue that paragraph 13 of the Appellant's Statement of Defence cannot constitute enough pleading upon which evidence of a principal-agent relationship can be founded because the said paragraph merely complained of non-joinder of the EIB and cannot be construed as a fact that the Respondent was an agent of EIB. Counsel further referred to OKWEJIMINOR Vs. GBAKEJI [2008] 5 NWLR (Pt.1079) Pg.172 at ; OLADIPO vs. M.L.G.A [2010] 5 NWLR (Pt.1185) Pg.117 and LAMURDE LOCAL GOVERNMENT Vs. KARKA [2010] 10 NWLR (Pt.1203] Pg.574 to submit that it is irrelevant whether the evidence of the alleged agency relationship was elicited from the Respondent's 15

23 witness under cross-examination, if it was not pleaded. Learned counsel cited EZENWA Vs. K.S.H.S.M.B. [2011] 9 NWLR (Pt.1251) Pg. 89 at 116; GAGARAU Vs. PASHIRI [2006] 1 NWLR (Pt.962) Pg.521 at 540; SLEE TRANSPORT LTD Vs. OLADIPO OLUWASEGUN & ANOR [1973] 3 ECSLR (Pt.11) Pg.478 at 495, PTF Vs. WPC LTD [2007] 14 NWLR (Pt.1055) Pg.1176 and GAJI Vs. PAYE [2003] 8 NWLR (Pt.823) Pg.583 to submit that it is a principle of fair hearing that a party should know in advance the evidence he shall be confronted with so as to prepare his case; and that if the Appellant was desirous of relying on the evidence elicited under cross-examination, it ought to have amended its pleadings to be in conformity with the evidence before the Court. Counsel relied on ORUWARI Vs. OSLER [2013] 5 NWLR (Pt.1348) Pg. 535 at and FUNTUA Vs. TIJJANI [2011] 7 NWLR (Pt.1245) Pg. 130 to urge this Court to expunge the evidence of pw1 in respect of the alleged agency relationship between the Respondent and the EIB, and treat same as worthless and inadmissible since it was not specifically pleaded. Learned counsel contended that assuming the evidence in 16

24 respect of the alleged agency relationship between the Respondent and the EIB is found to be admissible in law, the said evidence will not in any way vary the contents of Exhibit B3 because the Court or parties cannot vary or impute into a contract terms not expressly included in it. Counsel cited IHUNWO Vs. IHUNWO [2013] 8 NWLR (Pt.1357) Pg. 550 and F.K. CONSTRUCTION LTD Vs. N.D.I.C. [2013] 13 NWLR (Pt.1371) Pg.390 to submit that it is the duty of all Courts to interpret a contract based on the express terms of that contract. Counsel further relied on TIPPI Vs. NOTANI [2011] 8 NWLR (Pt.820) Pg. 577 to submit that oral evidence cannot vary, alter or amend the express terms of a contract or written document or documentary evidence; and that it is immaterial whether the said oral evidence was against the interest of the party making such oral statement. Learned counsel argued that there is no express or implied term in Exhibit B3 portraying the Respondent as an agent of EIB. Learned counsel further submitted that an agency relationship did not arise in the instant case. Counsel referred this Court to U.T.C. NIG. PLC Vs. PHILIPS (2012) 6 NWLR (Pt.1295) Pg.135; OLUFOSOYE Vs. FAKOREDE 17

25 [1993] 1 NWLR (Pt.272) Pg.747; IRONBAR Vs. C.R.B.R.D.A [2004] 2 NWLR (Pt.857) Pg.411 and VULCAN GASES LTD Vs. GESELLSCHAFT FUR IND. GASVERWERTUNG A.G. (G.I.V.) [2001] 9 NWLR (Pt.719) Pg.610. Learned counsel contended that no evidence was adduced by the Appellant to establish that an agency relationship existed between the Respondent and the EIB. Counsel submitted that the Respondent by Exhibit D1 had established that it credited the Appellant s account with $3,000,000 (Three Million Dollars); therefore, the burden to establish that the said sum was advanced by EIB rested on the Appellant which it has failed to prove. Learned counsel referred to Section 133 and 136 of the Evidence Act, 2011; FALOUGHI Vs. FIRST IMPRESSION CLEANERS LTD [2014] 7 NWLR (Pt.1406) Pg.335; ISEOGBEKUN Vs. ADELAKUN [2013] 10 NWLR (Pt.1363) Pg. 423 and DUDUSOLA Vs. N.G. CO LTD [2013] 10 NWLR (Pt.1363) Pg.423 to submit that the burden of proof may be foisted on a defendant to call evidence in proof of what he asserts. Learned counsel submitted that the Lower Court was right in its findings at page of the Additional Records of Appeal which the Appellant failed to appeal 18

26 against. Counsel submitted that the authorities relied upon by the Appellant are inapplicable to the facts of the instant case where it is expressly stated in Exhibit B3 that Respondent, alleged to be an Agent, shall have the right to demand payment from the Appellant. Learned counsel relied on CLEMENT Vs. IWUANYANWU [1989] 3 NWLR (Pt.107) Pg.39 at 54-55; AFRO CONTINENTAL NIG. LTD Vs. AYANTUYI [1991] 3 NWLR (Pt.178) Pg.211; BABATUNDE Vs. P.A.S. & T.A. LTD [2007] 13 NWLR (Pt.1050) Pg.11; ANEKWE Vs. STATE [2014] 10 NWLR (Pt.1415) Pg.35 and UGWUANYI Vs. NICON INS. PLC [2013] 11 NWLR (Pt.1366) Pg.545 to contend that the cases cited by the Appellants are not on all fours with the facts of the instant case and therefore cannot form a binding precedent which this Court is bound to follow. Counsel further relied on SHUAIBU Vs. MUAZU [2014] 8 NWLR (Pt.1409) Pg.207 at 302; OKULEYE vs. ADESANYA [2014] 12 NWLR (Pt.1422) Pg.521 and ADEGBITE vs. AMOSU [2016] 15 NWLR (Pt.1536) Pg. 405 to submit that the address of the Appellant's counsel cannot take the place of evidence and that in the instant case, there is evidence that the Appellant obtained the loan facility from EIB to 19

27 justify the contention that the Respondent lacked locus standi. Learned counsel contended that the Appellant by this appeal has not shown any injustice that has been occasioned by the decision of the Lower Court. Counsel relied on NDAYAKO Vs. DANTORO [2004] 13 NWLR (Pt.889) Pg.187 at 220; OKOTIE-EBOH Vs. MANAGER [2004] 18 NWLR (Pt.905) Pg.242at 280; AUDU Vs. ATTORNEY-GENERAL OF THE FEDERATION [2013] All FWLR (Pt. 667) Pg. 607 at 624. Paras. E F, OJENGBEDE Vs. ESAN [2001] 18 NWLR (Pt.746) Pg.771 at 790 and UNITY BANK PLC Vs. BOUARI [2008] All FWLR (Pt.415) Pg.1825 to submit that even where a decision is arrived at on a wrong reasoning this Court will not set aside such a decision which is correct in law unless the Appellant shows that there was in fact a miscarriage of justice; and that considering the evidence before it, the Lower Court was right in its decision that the Respondent herein has the requisite locus standi to institute this instant suit and this Court ought not to interfere with this decision of the Lower Court. Learned counsel submitted that it amounts to blowing hot and cold for the Appellant who executed 20

28 Exhibit B3 inclusive of clause 23 thereof and who also admitted indebtedness to turn around to contend that the Respondent has no locus standi in the face of Exhibits B, B1, B2 and H. Learned counsel again referred to the 'Late Payment' clause and clause 23 of Exhibit B3 to submit that the Respondent has the locus standi to have instituted this suit and that the Lower Court had the jurisdiction to have entertained this suit. Counsel referred to INTERGRATED TIMBER AND PLYWOOD PRODUCTS LIMITED VS. UNION BANK OF NIGERIA PLC [2006] 12 NWLR (Pt.995) Pg.483 at 510 and CHIDOKA Vs F.C.F.C. LTD (2013) 5 NWLR (Pt.1346) Pg.144 at 163 to submit that the issue of jurisdiction was raised by the Appellant as an attempt to rely on technicalities to see how the Court would react. Learned counsel urged this Court to resolve the twin issues in favour of the Respondent, affirm the judgment of the Lower Court and dismiss the appeal. APPELLANT'S REPLY In reply to the Respondent s submissions, learned counsel for the Appellant referred to S.P.D.C (NIG.) LTD Vs. EMEHURU [2007] All FWLR (Pt.381) pg.1594 at to submit that it is only Exhibit B3 that should be 21

29 considered and that Exhibit D1 does not form part of the contract of the parties. Counsel argued that only Exhibit B3 can be referred to and that the Court is not permitted to go outside the agreement of the parties. Counsel reiterated that it is apparent on the face of Exhibit B3 that the EIB is the financier of the loan facility and that the Respondent was merely the Local Agent/Guarantor. Learned counsel submitted on the strength of LEVENTIS TECHNICAL LTD Vs. PETROJESSICA ENTERPRISES LTD (1999) LPELR-1781 (SC) and UKAH & ORS vs. ONYIAH & ORS (2016) LPELR (CA) that even though it is the Respondent that executed Exhibit B3, it is deemed in law to have been executed by the EIB. Learned counsel for the Appellant contended that there is nothing on the face of Exhibit B3 that states or suggests that the request for the facility was made or directed to the Respondent Bank only. Counsel further argued that the contention by the Respondent that Exhibit D1 shows that the Appellant received the loan facility did not establish that the loan facility was advanced by the Respondent. Learned counsel for the Appellant relied on 22

30 ASHIBUOGWU Vs. A.G., BENDEL STATE (1988) 1 SC 248; AKINDURO Vs. ALAYA [2007] 15 NWLR (Pt.1057) Pg.312 at 338, Paras. C - D and EZEUGO Vs. STATE (2013) LPELR (CA) PG , Paras. G - G to argue that the admissions in Exhibits B, B1, B2 and H were made in pursuance of negotiations and thus inadmissible in law. Counsel referred to grounds 1, 3 and 4 of the Amended Notice of Appeal to submit that the contention of the Respondent that the Appellant did not appeal against the findings of the Lower Court at pages of the Additional Records of Appeal is untenable. Learned counsel submitted that contrary to the Respondent's submission, the EIB is privy to Exhibit B3 in view of the fact that it is a disclosed principal. Counsel referred to UNIVERSITY OF CALABAR Vs. EPHRAIM [1993] l NWLR (Pt.271) Pg.551 at 562, Paras. E-G to argue that although EIB did not directly execute Exhibit B3, it is deemed to have done so through the Respondent who is their agent. Counsel further submitted that whatever the Respondent did in pursuance to Exhibit B3 was done in its capacity as Local Arranger/Guarantor and Agent of EIB. Learned counsel submitted that contrary to the 23

31 Respondent's argument, the Appellant specifically pleaded the principal and agent relationship between the EIB and Respondent at paragraphs 3 and 13 of its statement of Defence at pages of the Records of Appeal. Counsel referred to AKEJU & ORS vs. KAYODE (2014) LPELR (CA) Pg , Paras. G - B to submit that the law does not mandate a party to plead all his facts verbatim provided the averments in the Pleadings are sufficient. Learned counsel made reference to KAYODE & ORS VS. REGISTERED TRUSTEES OF UNITED AFRICAN METHODIST CHURCH (2016) LPELR (CA) Pg , Paras. D - A to contend that assuming without conceding, that the agency relationship between the Respondent and EIB was not pleaded; it is an issue which touches on the jurisdiction of Lower Court to entertain the suit and therefore, the Appellant could raise the issue even before this Court and rely on the significant evidence of PW1. Counsel submitted that the action by the Respondent without the EIB was void ab initio. Learned counsel further contended that the oral evidence of PW1 does not in any way vary, alter or add to Exhibit B3, 24

32 rather, it supports the content thereof to the extent that it clarifies the capacity in which the Respondent has entered the contract. Counsel referred to 128(1) (a) of the Evidence Act, 2011 to submit that the terms of Exhibit B3 are very clear on who is financing the facility to the Appellant and who is representing the interest of the financier in Nigeria; and that the oral evidence of PW3 which clarifies the capacity in which the Respondent acted is admissible. Counsel submitted that when Exhibit B3 is read as whole, it will be revealed that the Appellant acted as an Agent; and that it is immaterial that the Respondent was not referred to as an Agent of the EIB; and that what is of essence is whether from the said Exhibit B3, it can be inferred that the Respondent is an Agent. Learned counsel referred to OSIGWE Vs. PSPLS CONSORTIUM LTD & ORS (2009) LPELR-2807 (SC) pg.31, paras. D - F to submit that the terminologies used by parties to describe their relationship are not as important as the nature or circumstances of the relationship between the alleged principal and agent, Learned counsel for the Appellant submitted that PW1 testified under cross-examination that the Respondent 25

33 earned arrangement fees on the transaction and that the Respondent did not challenge this position under reexamination. Counsel referred to KAMALU & ORS Vs. UMUNNA & ORS (1997) LPELR-1657 (SC) Pg.27, Paras. D - F to submit that the testimony of PW1 amounts to an admission which is a viable type of evidence. Counsel argued that having established that the Respondent is an Agent of EIB, the burden shifted on the Respondent to prove that it is not an Agent of EIB. Learned counsel referred to UKAH & ORS Vs. ONYIAH & ORS (supra) at Pg , Paras. D D submitted that although the Respondent credited the Appellant's account, it is deemed that it is the EIB that credited the Appellant's account. Counsel referred to grounds 1, 3 and 4 of the Amended Notice of Appeal and submitted that it is untenable for the Respondent to contend that the Appellant did not appeal against the findings of the Lower Court at pages of the Additional Records of Appeal. Learned counsel for the Appellant contended that the Respondent's submission that the Appellant is challenging the reasoning of the decision of the Lower Court does 26

34 IKWU Vs. IKWU & ORS (2016) LPELR (CA) pg , paras. D - E and submitted that what the Appellant is challenging is the decision of the Lower Court and not the reasoning; and that the Appellant by its Amended Notice of Appeal contends that the decision of the Lower Court is wrong. Learned counsel further submitted that the Appellant is not blowing hot and cold and that since Exhibit 3 describes EIB as the financier, the parties are bound by the agreement; counsel referred to ARJAY LTD Vs. AIRLINE MANAGEMENT SUPPORT LTD (2003) LPELR-555 (SC) and NNEJI vs. ZAKHEM CON. (NIG) LTD (2006) LPELR-2059 (SC) Pg , Paras. D - A. Learned counsel reiterated on the issue of locus standi that it is the EIB that has locus standi as clearly shown by Exhibit B3 and that the loan is identified as EIB loan and not the Respondent's loan. Counsel submitted that it cannot be said that the issue of jurisdiction was raised to test the waters; and that the Respondent could only have properly sued in the name of or on behalf of the EIB, the financier of the loan. Learned counsel argued that the case of CHIDOKA Vs. F.C.F.C. LTD (supra) is not applicable to 27

35 the case at hand because the issue of the financier of the loan was not raised in that case. Counsel urged this Court to allow the Appeal and set aside the judgment of the Lower Court. RESOLUTION I have carefully read the judgment of the Lower Court which gave rise to this appeal and the arguments of the parties; the case of the Appellant is that the Respondent herein was not the creditor or financier of the loan in question; that the said loan advanced to the Appellant was sourced from European Investment Bank (EIB) through the Respondent; that by Exhibit B3 and the testimony of the Respondent's sole witness under cross-examination, the Respondent only acted as a Local Arranger/Guarantor of the loan, as well as an Agent of EIB in advancing the loan to the Appellant; and that the Lower Court at page 137 of the Records of Appeal confirmed that the Respondent is a Guarantor to the loan. Appellant further argued that having found that the Respondent is a Guarantor to the loan, it was wrong for the Lower Court to have assumed jurisdiction and to have held that the Respondent had the locus standi to institute the suit against the Appellant for the recovery of the loan. 28

36 The Respondent on the other hand contended that by clause 23 of Exhibit B3, it is expressly stated that the Respondent can demand the repayment of the loan and that Exhibits B, B1, B2 and H which DW1 confirmed to have emanated from the Appellant all confirm the indebtedness of the Appellant to the Respondent and not to EIB; that the Appellant has not in any way denied receiving the loan, but that the Appellant s case is that by Exhibit B3, the Respondent is not entitled to recover the loan; that where a commercial 'agreement comes before the Court for construction, the Court is to appraise the entire contract and all documents relating thereto in order to give effect to the intention of the parties. Respondent submitted that the issue of locus standi is subject to the facts of each case, and that a plaintiff will have the locus standi in a matter where he has a special interest or if he can show that he has sufficient interest in the subject matter of the case. The first issue which I consider necessary and upon which the entire arguments of parties is concreted is "whether in the circumstances of this case, the Respondent has the 29

37 locus standi to institute the instant suit and whether the Lower Court was right to have assumed jurisdiction in this case". In determining this issue, reference must be made to Exhibit B3 dated 30th of March, 2007 as contained at pages 8-15 of the Records of Appeal; both parties in this appeal relied on this piece of evidence. The law is settled that in construing the written agreement between parties, the document must be read as a whole and parties or the Court will not be permitted to pick and choose portions of the documents on which they will place reliance to the neglect of other parts of the same document. See INTERNATIONAL STANDARD SECURITIES VS. UNION BANK OF NIGERIA PLC (2009) LPELR-8788 (CA) Pg. 32, Paras. D - E and WILLIAMS Vs. WILLIAMS (2014) LPELR-22642(CA) Pg. 31, Paras. C - G this Court held that: in a given document, contract or enactment, the principle is that the documents, contracts or enactment must be read as a whole and not in isolation by clauses or sections " The purpose of construing the entire contract is to discover and give effect to the true intention of the parties. In ADIELE IHUNWO vs. JOHNSON IHUNWO (2013) 30

38 LPELR (SC) Pg.41-42, Paras. E B, the Supreme Court of Nigeria held as follows: "The meaning to be placed on a contract is that which is the plain, clear and obvious result of the terms used in the agreement... when constructing documents in dispute between the parties, the proper course is to discover the intention or contemplation of the parties and not to import into the contract ideas not potent on the face of the document... where there is a contract regulating any arrangement between the parties, the main duty of the Court is to interpret the contract to give effect to the wishes of the parties as expressed in the contract document... In the construction of documents, the question is not what the parties to the document may have intended to do by entering into that document, but what is the meaning of the words used in the document However, where the meaning of words used is not clear, the Court will fall back on the intention behind the words." See also ARCHIBONG Vs. FIRST BANK OF NIGERIA PLC (2014) LPELR (CA) Pg.29-31, Paras. D - A and UBA Vs. NEW TARZAN MOTORS LTD (2016) LPELR (CA) Pg Paras. G C. 31

39 The issue of locus standi has been judicially pronounced upon by the Supreme Court and this Court in a plethora of decisions; I shall refer to a few. In JITTE & ANOR Vs. OKPULOR (2015) LPELR (SC) Pg.19, Paras.E-F the Supreme Court held that: what the plaintiff needs to show in order to establish that he has locus standi in a case is, sufficient interest in the matter in controversy. In AL-HASSAN & ANOR vs. ISHAKU & ORS (2016) LPELR (SC) Pg.30, Paras. C - E, the Supreme Court per my lord RHODES-VIVOUR JSC held that: " The rule about locus standi developed primarily to protect the Courts from being used as a playground by professional litigants, or, and meddlesome interlopers, busybodies who really have not real stake or interest in the subject matter of the litigation." See also the decision of ARIWOOLA JSC in BAKARE & ORS VS. AJOSE-ADEOGUN & ORS (2014) LPELR (SC) Pg.33-34, Paras. F - E where my lord held that:... This Court has maintained on locus standi that a plaintiff, to enable him invoke the judicial power of the Court must show sufficient interest or threat of injury 32

40 he would suffer which is being sought to be protected. My lord further held at Pg , Paras E - A of BAKARE & ORS vs. AJOSE-ADEOGUN & ORS (supra) that: "...in the determination of locus standi the plaintiffs statement of claim should be the only process that should be considered or should receive the attention of the Court..." In the instant case, the role played by the Respondent in the loan transaction granted by Exhibit B3 transcends the description of "Local Arranger/Guarantor" ascribed to it when the document is read as a whole. It would be seen in the introductory paragraph of Exhibit B3 on page 8 of the Records of Appeal that the Respondent upon the request by the Appellant, revised and approved the loan to the Appellant. All through the document, the role of the Respondent referred therein as The Bank" was clearly stated and these will tell the true intention of the parties. It is, clear from the contents of this document (Exhibit B3) that the party saddled with the responsibility of demanding and receiving repayment of the loan is the Respondent and not the European Investment Bank as contended by the Appellant. 33

41 Clause 23 at page 12 of the Records of Appeal confers upon the Respondent ("The Bank ) the sole power to demand the repayment of the loan offered to the Appellant. The duty of the Court is to interpret the contract and give effect to the wishes of the parties as expressed in the document. In so doing, the Court will consider the whole document with the aim of doing justice devoid of technicalities. In the instant case, as rightly held by the learned trial judge at page 122 of the Additional Records of Appeal, the Appellant's "defence is not that they did not take out a loan." By the simple construction the Exhibit B3, the Respondent is a party to the loan transaction, evidenced by the Execution clause to Exhibit B3 at page 15 of the Records of Appeal. It therefore follows that, if repayment is due to the Respondent, and the Respondent is given such a wide power to demand repayment of the loan or alter the terms of the loan at any time, the Respondent naturally has the locus standi to bring an action to demand repayment of the loan. In the instant case, the Respondent in my view has shown by the Statement of Claim and the 34

42 accompanying processes that the Respondent has sufficient interest to confer on it the locus standi to institute this action and sue for recovery of the loan received by the Appellant; the Respondent pleaded in the Statement of Claim at pages 3-5 of the Records of Appeal that it has demanded the loan facility and that the Appellant has refused and is unwilling to liquidate the sum unless compelled by the lower Court. The Supreme Court in CHUKWU & ANOR Vs. INEC & ORS (2014) LPELR-22221(SC) Pg.43, Paras. E G said as follows:... I agree as submitted by the 1st respondent's counsel that the law on locus standi is not static and that the circumstances of each case are to be considered. Hence, what constitutes a legal right, sufficient or special interest adversely affected will, of course, depend on the facts of each case Therefore each case should be considered on its merit and peculiar facts." See also A.G., LAGOS STATE Vs. EKO HOTELS LTD & ORS [2006] NWLR (Pt.1011) 378 (2006) LPELR-3161 (SC) Pg.75, Paras. B-G. In the instant case, Exhibits B, B1, B2 and H contained at pages 91, 94-95, 96 and respectively were tendered 35