In the Supreme Court of Nigeria Holden at Abuja On Friday, the 19th day of February, 2021
Before Their Lordships
Nwali Sylvester Ngwuta
John Inyang Okoro
Uwani Musa Abba Aji
Ibrahim Mohammed Musa Saulawa
Adamu Jauro
Justices, Supreme Court
SC.475/2014
Between
PASSCO INTERNATIONAL LIMITED APPELLANT
(SUING THROUGH ITS ATTORNEY – CHUKA IFEZUE)
And
UNITY BANK PLC RESPONDENT
(Lead Judgement delivered by Honourable Ibrahim Mohammed Musa Saulawa, JSC)
Facts
The Appellant instituted an action against the Respondent, in which it sought against the Respondent, the recovery of the sum of N150 million which it deposited into its current account with the Respondent. In reaction, the Respondent filed its statement of defence and urged the trial court to dismiss the claim for being ex facie illegal, and punishable by law. The case proceeded to trial, and in the course of the trial, counsel for the Appellant who also doubled as the Appellant’s attorney admitted in open court that the said sum had been effectively transferred and paid by the Respondent into the Appellant’s Union Bank Plc United Kingdom account. At the end of trial, the trial court delivered its judgement, in which it came to the conclusion the Appellant’s claim was devoid of merit and accordingly dismissed same.
Aggrieved, the Appellant appealed to the Court of Appeal. The Court of Appeal dismissed the appeal, and affirmed the judgement of the trial court. The Appellant filed a further appeal at the Supreme Court.
Issues for Determination
In its resolution of the appeal, the Supreme Court considered the following issues submitted for determination by the Appellant:
1. Whether the Court of Appeal was right in affirming the judgement of the trial court on pleaded facts of acts which are ex facie illegal and punishable by law.
2. Whether having regard to Sections 24, 34(1) and (2), 37(a) and (b), and 126 of the Evidence Act 2011 and the settled principle of Stare Decisis, the Court of Appeal was right in law to affirm the decision of the trial court which was anchored on evidence rendered inadmissible by law.
Arguments
On the 1st issue, counsel for the Appellant argued that the culmination of all the facts pleaded by the Respondent in its statement of defence in the record of appeal, are on acts that are ex-facie illegal and punishable by law. He submitted that the transfer of the N150 million into the Appellant’s UK Union Bank account was done through ex facie illegal methods, and the Court of Appeal ought not to have close its eyes to the illegal transaction, but nullify it and affirm the Appellant’s claims.
In reaction, counsel for the Respondent argued that the allegations of ex facie illegality raised by the Appellant, were issues that were not raised at the trial court or at the court below by the Appellant. He argued that there was no specific pleading by the Appellant on the alleged illegality and no evidence was led in that regard, and the supposed illegality was only belatedly alluded to in the Appellant’s final written address and thereafter, sequel to the leave granted to it by the Apex Court to amend its notice of appeal.
Counsel for the Respondent equally posited that from the documentary evidence before the trial court, it was apparent that the Appellant had consented to, and authorised the transaction, and even furnished the names of the recipients of the funds in question. He submitted that having taken benefit of the funds, the only proper order the court could make would be an order compelling the Appellant to return the monies to the Respondent.
On the 2nd issue, counsel for the Appellant argued that the Appellant’s attorney’s oral admission relied upon by the trial court and upheld by the Court of Appeal, is ineffectual in law, in view of the fact that the beneficiaries of the manager’s cheques which the Respondent purported in its statement of defence to have been disbursed by the Appellant, were not called as witnesses during the trial.
On the other hand, counsel for the Respondent argued that by the provisions of Sections 20 and 21 of the Evidence Act, 2011, the admission made by the Appellant’s attorney in court was binding on the Appellant. He submitted that the oral admission of the Appellant’s attorney was admissible and rightly acted upon by the trial court, going by the provisions of Section 21 of the Evidence Act, 2011 that a statement made by a party to the proceedings or by an agent to any such party, whom the court regards in the circumstances of the case as expressly or impliedly authorised by him to make amounts to an admission.
Court’s Judgement and Rationale
In its determination of the 1st issue, the Court held that an issue of fact cannot be rightly raised in counsel’s final address or brief as the case may be. The reason being that in a trial court, where pleadings are filed and exchanged, issues or questions of fact can only be raised in the pleadings of the respective parties.
The Court held that the defence of illegality being an issue of fact is not merely a matter of course, it must be expressly set forth (pleaded) in the response to the opponent’s pleadings. The Court further held that a party who willingly and actively participated in some ex facie illegal or fraudulent transaction, cannot in law be granted a relief to the prejudice of the partner or co-conspirator thereof. The Court placed reliance on OYEGOKE v IRIGUNA (2001) ALL FWLR (Pr. 75) 448 at 460 PARAGRAPH F and DIAMOND BANK LTD v UGOCHUKWU (2007) ALL FWLR (Pt. 384) 290 at 315-316, PARAGRAPHS A-B. The court as a court of equity and good conscience, has an onerous duty not to allow a party get away with what will amount to constructive fraud. Relying on NOCTION v LORD ASHBURTON (1914) AC 932 and AG FEDERATION v SODE (1990) NWLR (Pt. 128) 500, the court held that it is against public interest to allow a person who has benefitted from an agreement, to turn around and claim that the agreement is illegal, null and void.
The Court held that the issue of illegality was belatedly raised by the Appellant, the same not having being pleaded in the Appellant’s pleadings before the trial court. Furthermore, the Appellant, having willingly had the N150 million transferred to its UK account, could not turn around under the alleged illegalities, to impugn the transaction.
On the second issue, the Apex Court held that it is trite that in civil cases, admissions by a party are formidable evidence of facts asserted against, albeit not in favour of such party. Unless very cogent and credible explanations are given, thereby satisfying the court, such admissions should not be so regarded, due weight ought to be accorded thereto as such by the court. It is also an established doctrine, that a fact which is not denied by a party is deemed to have been admitted by such a party.
The Court held that the Appellant’s attorney’s admission in open court that the said sum was indeed remitted by the Respondent into the Appellant’s UK Union Bank Plc account was made freely and voluntarily, hence, it was relevant and rightly acted upon by the court. The Court referred to UBA PLC v JARGARBA (2007) 11 NWLR (Pt. 1045) 247. Having admitted receiving the said sum in its UK account, the Appellant could not come to the court to ask it to direct the Respondent to ensure that the Appellant’s account with the Respondent, from which the said sum was transferred, reflects the original balance of N150 million.
The Court held further that it is ludicrous that the Appellant was contending that the transactions leading to the said sum being transferred to its UK account were ex facie illegal, especially when such was not pleaded in their pleadings at the trial court. Equity will not allow the Appellant to challenge the legality of the transactions from which it has immensely benefitted. The Court referred to its decision in the cases of BULET INT’L (NIG) LTD & ANOR. v OLANIYI & ANOR. (2017) LPELR – 42575 (SC); B. B. APUGO & SONS v OHMB (2016) LPELR – 40598 (SC).
Appeal Dismissed.
Representation
Somtochukwu Ifezue, Esq. for the Appellant.
Victor U. Opara Esq. for the Respondent.
Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)
