C.B.N & ANOR V. OLAYATO ARIBO
MUSA DATTIJO MUHAMMAD
CLARA BATA OGUNBIYI
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN
SIDI DAUDA BAGE
1. CENTRAL BANK OF NIGERIA
2. DIRECTOR, BANKING SUPERVISION CENTRAL BANK OF NIGERIA
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC: This appeal is against part of the judgment of the Court of Appeal, Lagos Division delivered on 22/3/2010 allowing the appeal of the respondent against part of the judgment of the Federal High Court, Lagos Division delivered on 14/7/2008 by setting aside the order blacklisting him.
The facts that gave rise to the appeal are as follows: The respondent was the Divisional Head of the department in charge of foreign exchange documentation at Equity Bank of Nig. Ltd. Sometime in 2002 the 1st appellant (the Central Bank of Nigeria -CBN) revoked the bank's licence to conduct foreign exchange transactions when it was discovered that it was selling foreign exchange in breach of laid down procedures. The bank was also penalised in the sum of N293.129 million. As a result, the bank's board of directors advised the respondent and two other employees to resign their appointments. The respondent accordingly tendered his letter of resignation on 10th October 2002.
The 1st appellant set up a Special Board Committee to look into the foreign exchange transactions of the bank. Based on the report, the 1st appellant advised the bank to terminate the employment of the respondent and other employees found to be complicit in the illegal foreign exchange transactions. The 1st appellant deemed the actions of the respondent and other affected employees to constitute serious misconduct, which entitled the bank under Section 44(2)(d) of the Banks and Other Financial Institutions Act 1991 (BOFIA) (as amended) (now Section 48(2)(d) of the Banks and other Financial Institutions Act Cap. B3, Laws of the Federation of Nigeria, 2004) to blacklist him. His appointment was accordingly terminated vide a letter dated 5th February, 2003. Consequently he instituted an action before the Federal High Court vide suit no. FHC/L/CS/163/2003 coram Abutu, J against Equity Bank as 1st defendant and the Central Bank of Nigeria (1st appellant) as 2nd defendant challenging the termination of his appointment for the purpose of blacklisting him under Section 44(4) of BOFIA (now Section 48(4) of BOFIA, LFN 2004) even though the bank had accepted his letter of resignation and had paid him his entitlements. The bank had purported to reject the letter of resignation with a letter of termination.
Abutu, J. entered judgment in the respondent's favour as follows:
1. It is declared that the Plaintiff not having been dismissed and his appointment not having been terminated for reasons of fraud, dishonesty or conviction for an offence involving fraud or dishonesty, the 2nd defendant cannot invoke the provisions of Section 44 (4) of the Banks and other Financial Institutions Act, 1991 (as amended) against the plaintiff to blacklist him.
2. It is further declared that the 1st defendant having accepted the resignation of the plaintiff and paid him his entitlements cannot subsequently validly terminate the appointment of the plaintiff.
3. The 1st defendant's letter dated 5th February 2003 for the termination of the appointment of the plaintiff is hereby declared null and void and of no effect. The said letter is hereby set aside."
After the success of the action, the respondent sought employment in other financial institutions. He was unsuccessful because, having regard to his position as a management staff in the banking industry, he required clearance from the CBN before any bank or financial institution could employ him. The 1st appellant refused to grant the clearance on the ground that he had been blacklisted.
In an attempt to overcome this roadblock, he instituted a fresh action against the appellants herein by way of originating summons filed on 31/3/2008 before the Federal High Court, Lagos (the trial court) vide suit no. FHC/L/CS/305/2008. He sought the following reliefs:
1. A mandatory order directing the defendants, particularly the 2nd defendant to de-blacklist the plaintiff and to delete his name from the list of blacklisted persons.
2. An order directing the defendants, particularly the 2nd defendant to comply with the declaration of Hon. Justice D.D. Abutu in the judgment delivered on 11/4/2005.
3. An order directing the defendants, particularly the 2nd defendant, to notify the plaintiff in writing [of] the removal of his name from the blacklisted list.
4. An order for payment of exemplary and aggravated damages in the sum of N40, 000, 000.00 for loss of employment and earnings from 2005 to date of judgment in this suit.
5. The cost of this suit.
The following documents were attached to the supporting affidavit:
i. Exhibit DM1 - Certified True Copy of the Judgment of Abutu, J. dated 11/4/2005;
ii. Exhibit DM2 - Respondent's letter of appeal to the 2nd appellant dated 28/7/2005;
iii. Exhibit DM3 - 2nd appellant's letter dated 19/9/2005 notifying the respondent that his name had been blacklisted; and
iv. Exhibit DM4 - Respondent's solicitor's letter dated 26/9/2005 to the 2nd appellant.
The appellants filed a counter affidavit in opposition to the summons.
At the conclusion of the hearing and relying on the findings of Abutu, J. in Exhibit DM1, the trial court per Hon. Justice Okechukwu J. Okeke, in a considered judgment delivered on 14/7/2008, upheld the blacklisting of the respondent. In reaching his decision, His Lordship relied on findings made by Abutu J. in Exhibit DM1 to the effect that the respondent was indicted in the report of the Special Board Committee tendered before him which found him guilty of foreign exchange malpractices. The respondent was dissatisfied with the decision and filed an appeal before the lower court. He formulated 3 issues for determination. In its judgment delivered on 22/3/2010 the court struck out two of the issues formulated on the ground that they did not arise from the decision of the trial court. It allowed the appeal in part as follows:
"I set aside the decision of the learned trial Judge on the 14/7/08 in respect of reliefs 1 & 3 on the Originating Summons. In its place, I order that the name of the Appellant be de-blacklisted by the respondent I award costs ofN30, 000.00 in favour of the Appellant."
The appellants are dissatisfied with the part of the judgment directing that the respondent's name be de-blacklisted, hence the instant appeal. The parties duly filed and exchanged their respective briefs in compliance with the rules of this court. At the hearing of the appeal on 20th February, 2017, ELUBODE B. OMOBORIOWO ESQ. adopted and relied on the appellant's brief filed on 26/2/2013, settled by CHIEF TUNDE OLOJO, in urging the court to allow the appeal, A.M. MAKINDE ESQ. leading Messrs S.J. ODUMOSU and M. GAMBO, adopted the respondent's brief filed on 15/5/13, settled by him, urging the court to dismiss the appeal.
The appellants formulated 2 issues for the determination of the appeal as follows:
1. Whether the appellants were entitled to rely on the findings of fact in an earlier judgment in the later action as a defence in the later action?
2. Whether there was sufficient evidence before the Court of Appeal to justify the reversal of the decision of the trial court and consequently grant of the relief of de-blacklisting sought by the respondent?
The respondent also identified 2 issues for determination thus:
1. Whether the court below was correct when it reversed the decision of the learned trial Judge on the ground that the appellants did not justify the blacklisting of the respondent from the evidence before the trial court?
2. Whether the court below was right when it held that the trial Judge was in error when he relied upon the findings of Abutu, J. in another judgment in arriving at its own decision especially when the evidence to support the decision was neither produced nor the issues in both cases the same?
The issues formulated by both parties are substantially the same. I shall adopt the issues formulated by the appellants is determining the appeal.
Whether the appellants were entitled to rely on the findings of fact in an earlier judgment in the later action as a defence in the later action?
This issue is the same as the respondent's issue 2.
Learned counsel for the appellant commenced his submissions by contending that the finding of the lower court to the effect that the parties did not plead estoppel or res judicata is not supported by the evidence before that court. He noted that the case before the trial court was predicated mainly on the judgment of Abutu, 3. in FHC/L/CS/163/2003 exhibited by the respondent as Exhibit DM1 in support of his originating summons, as his complaint was that the appellants had failed to comply with the said judgment. He submitted that a judgment includes not only the conclusion reached therein but also the findings of fact upon which the conclusion is based. He referred to the definition of "decision" as stated in Section 318 (1) of the 1999 Constitution of the Federal Republic of Nigeria, 1999 (as amended). He also referred to the definition of "finding of fact" as contained in Black's Law Dictionary, 7th edition, to wit: "a determination by a Judge, Jury or administrative agency of a fact supported by evidence on record usually presented.at a trial or hearing", and submitted that a finding of fact contained in a judgment qualifies as a decision of that court, which remains subsisting until set aside. He submitted that in the course of the hearing of the originating summons, learned counsel for the appellants identified salient findings of Abutu, J. in Exhibit DM1 and related them to the issues in contention in the suit before Okeke, J. He contended that the averments in the counter affidavit and the submissions of learned counsel raised the principle of issue estoppel. That issue estoppel need not be pleaded in any particular form so long as the matters constituting estoppel are stated in such a manner as to show that the party relies on it as a defence or answer. He relied on: Alakija & Ors. Vs Abdullai (1998) 6 NWLR (Pt.552) 1 @ 15 A - B. He urged the court to find and hold that the parties duly raised and argued the issue of issue estoppel/res judicata.
He argued further that even if the court does not agree that the parties raised issue estoppel, the judgment in Exhibit DM1 remains relevant and binding on the parties by virtue of Section 174 (1) & (2) of the Evidence Act 2011. He submitted that the lower court correctly stated the principle that evidence in an earlier case cannot be relied upon in a later case but erroneously went on to hold that while the final decision of Abutu, J. could constitute evidence by producing his judgment, the evidence led therein could not be relied upon by the court in another case to grant the reliefs sought on a different cause of complaint. He submitted that the principles were misapplied in the circumstances of this case, having regard to the fact that the respondent had approached the trial court seeking an order compelling the appellants to obey the decision reached in Exhibit DM1. He submitted that Exhibit DM1 contained several findings of fact and considerations of the law from which a conclusion was finally drawn and that the appellants relied on those findings of fact and not the evidence. He referred to paragraph 6 of the appellants' counter affidavit at pages 35 - 36 of the record.
In addition to Section 174 (1) and (2) of the Evidence Act, he also relied on sections 59 and 173 to buttress his submission that a judgment is conclusive proof of what it decides. He submitted that where a party relies on a judgment against which he has not appealed, he is deemed to rely on every part of the judgment including the findings leading to the ultimate conclusion reached. He submitted that the respondent was not entitled to rely on the aspects of the judgment favourable to him and jettison those parts which are not. He referred to: A.C.B. Pic. Vs Losada (Nig.) Ltd. (1995) 7 NWLR (Pt.405) 26 @ 53 D. On the effect of a judgment not appealed against he relied on: K.T. & Ind. Pic. Vs The Tugboat "M/V JAPAUL B" (2011) 9 NWLR (Pt.1251) 133 @ 157 B - G. He submitted further that the questions raised by the respondent in the earlier suit were fully decided by Abutu, 1 in Exhibit DM1 and the trial court was therefore entitled to rely on the findings therein. He contended that to act otherwise would have amounted to Abutu, J. sitting on appeal over the decision of a court of concurrent jurisdiction. He relied on: Okoye Vs Nigerian Furniture Co. Ltd. (1991) 6 NWLR (Pt.199) 501 @ 538 C - D. He urged the court to resolve this issue in favour of the appellants.
In reaction to the above submissions, learned counsel for the respondent submitted that the cause of action in the two suits before the Federal High Court were different and that the trial court was wrong to have relied on the judgment in Exhibit DM1 in reaching its decision. He contended that while the issue before Abutu, J. was the termination of the respondent's employment bordering on Section 44(4) of BOFIA and the threat to blacklist him, the issue in the later suit before Okeke, J. was the blacklisting of the respondent under Section 44(2)(d) of BOFIA which, in his view, is a completely different issue. He submitted that the court below was right in upholding the respondent's contention that the learned trial Judge was in error to have relied on the findings of Abutu, J. in Exhibit DM1 to the effect that the respondent was involved in illegal foreign exchange transactions when the Special Committee Report was not before him. He relied on the case of: David Itauma Vs Akpe Ime (2000) 12 NWLR (Pt.680) 156. He stoutly rejected the contention of learned counsel for the appellants that a finding of fact may qualify as a decision of the court. He posited that the evidence led in the suit before Abutu, J. could not be relied upon as evidence in the suit before the learned trial Judge, having regard to the fact that the cause of action before Okeke, J. arose after the decision of Abutu, J. upon the issuance of the letter of de-listing to the respondent by the appellants.
He submitted that learned counsel for the appellants misapplied the provisions of Section 174 (1) and (2) of the Evidence Act, as the facts and circumstances of this case and the issues before Abutu, J. were not the same and therefore could not constitute issue estoppel between the parties and the findings of Abutu, J. could not constitute evidence in the instant case. While conceding that an appellate court is usually reluctant to set aside the findings of fact made by a trial court, he submitted that the findings in the instant case were rightly set aside by the lower court, as the findings were perverse, the trial court having taken into account matters which it ought not to have taken into account. He also contended that the findings of the trial court ran counter to the evidence before it. He relied on: Yaro Vs Arewa Construction Ltd. (2007) 17 NWLR (Pt.1063) 333.
In resolving this issue, I am of the view that it is necessary to determine what is meant by the phrase "findings of fact/' Black's Law Dictionary, 8th edition defines it as:
"A determination by a judge, jury or administrative agency of a fact supported by the evidence in the record, usually presented at the trial or hearing."
This court in the case of Egbe Vs Adefarasin (1987) 1 NWLR (Pt.47) 1 @ 20 F - H gave further elucidation on the issue as follows:
"A finding is a result of deliberations of a jury or a court. It is a decision upon a question of fact reached as a result of judicial examination or investigation by a court, jury, referee, coroner, etc. It is more appropriately called a finding of fact and as the name implies it is a determination from the evidence of a case concerning facts averred by one side and denied by the other side. Findings of fact are the results of reasoning from evidentiary facts. They are conclusions drawn by the court from the facts without the application of law or exercise of legal judgment. A trial court must first find the facts or make appropriate Findings of fact on the issues in dispute before applying the relevant and applicable law. Findings of fact fall within the peculiar preserve of the trial Judge. Conclusions or inference from those facts can be drawn by any court, including appellate courts: See: Bannmax Vs Austin Motor Auto Co. Ltd. (1955) A.C. 370 at page 375; (1955) 1 All ER 326 at pp. 327/328."
See also: Fointrades Ltd. Vs Universal Association Co. Ltd. (20021 8 NWLR (Pt.770) 699: Edosa & Anor. Vs Oaiemwanre (2010) LPELR-8618 (C/A).
Thus findings of fact are made by a trial Judge after carefully reviewing the evidence before the court and conclusions or inferences can be drawn from those facts by any court. It is settled law that an appellate court is always loth to interfere with findings of fact made by a trial court unless the decision of the court is shown to be unreasonable, perverse, not supported by the evidence or where such decision is not the result of a genuine exercise of judicial discretion and has resulted in a miscarriage of justice. See: Kodilinye Vs Odu (1935) 2 WACA 336: Yesufu Vs Adama (2010) 5 NWLR (Pt.1188) 522. The law is also settled that a decision of a court of competent jurisdiction is valid and subsisting unless set aside by an appellate court. It follows therefore that a vital finding of fact upon which a judgment is predicated, which is not appealed against remains intact. It remains valid and binding on the parties. See: Kraus Thompson Org. Ltd. Vs UNICAL (2004) 9 NWLR (Pt.879) 631 @ 642: Okonkwo Vs INEC (2004) 1 NWLR (Pt.554) 242 @ 256: Amale Vs Sokoto Local Government & Ors. (2012) LPELR-7842 (SCI) Anyanwu Vs Ogunewe & Ors. (2014) LPELR-22184 (SC) @ 47 C - F.
Now, in the originating summons that led to this appeal, the respondent specifically sought an order "directing the defendant, particularly the 2nd defendant to comply with the judgment of Hon. Justice D.D. Abutu in the judgment delivered on 11th April, 2005." The judgment was annexed to the affidavit in support as Exhibit DM1. In a trial on originating summons, the averments in the affidavit in support and the exhibits annexed thereto constitute the evidence upon which the court will rely in reaching its decision. In paragraph 9 of the affidavit in support the respondent averred that there was no appeal filed against the judgment by the 1st defendant i.e. the 1st appellant herein. It is also evident that having obtained judgment in his favour, the respondent was satisfied with the judgment in all respects and did not deem it necessary to appeal against any of the findings made. Thus the judgment delivered by Abutu, 1 in suit no. FHC/L/CS/163/2003 is valid, subsisting and binding on the parties thereto.
His Lordship, Okeke, J.made some findings based on Exhibit DM1 as follows:
"On page 16 of Exhibit DM1, Honourable Justice D.D. Abutu held thus: -
The evidence on both sides, which I accept is that the plaintiff was an employee of the 1st defendant and that the plaintiff took part in the foreign exchange transactions in respect of which the 1st defendant was penalised in the sum of N293.129 million for illegal foreign exchange transactions and its dealership licence suspended indefinitely.
Exhibit 2 is the 2nd defendants query letter to the plaintiff. The plaintiff's reply to Exhibit 2 is Exhibit 7. Exhibit 9 is the minute of the Special Board Committee before which the plaintiff admittedly appeared and Exhibit 10 is the report of the committee wherein the plaintiff. Messrs Kalu and Adegboye were adjudged guilty of forex malpractices. The evidence is that notwithstanding the findings of the committee that the three officers were guilty of malpractices, the 1st defendant merely advised them to resign."
It is not in dispute that the plaintiff herein and its (sic) erstwhile employer, Equity Bank of Nigeria Limited were involved in foreign exchange transactions for which the Central Bank of Nigeria can impose sanctions. Equity Bank of Nigeria Limited (plaintiff's erstwhile employer) was penalised in the whopping sum of N293,129 million and its dealership licence suspended indefinitely. It is my humble view the plaintiff's involvement in the illegal foreign exchange is serious misconduct in relation to his duties while in the services of Equity Bank of Nigeria Ltd. It is also my view that the condonation of the plaintiff's serious misconduct in the illegal foreign exchange transactions by a fellow culprit is no bar to the Central Bank of Nigeria exercising its power to sanction the plaintiff." (Underlining supplied for emphasis)
The court below rejected the findings above on the following grounds:
a. That the learned trial Judge should not have arrived at his decision on the respondent's involvement in illegal foreign exchange transactions without looking at the Special Committee Report.
b. That in the absence of the report there was insufficient evidence upon which the court could have decided whether or not to grant the prayer to. de-blacklist him or not.
c. That the decision of Abutu, J. was not based on the issue of illegal transactions.
d. That the parties did not plead issue estoppel or res judicata.
It should be reiterated that it was the respondent who exhibited and relied upon the judgment of Abutu, J. in FHC/L/CS/163/2003 as part of his evidence in the suit, in support of his prayer for an order of the court directing the defendants to comply therewith among other reliefs. As can be seen from the excerpt of the judgment of Abutu, J. reproduced in the judgment of Okeke, J., His Lordship considered the entirety of the evidence before him, which he accepted, before arriving at the final decision made in that suit. In concluding the judgment he held thus:
"The misconduct of the plaintiff arising from the illegal foreign exchange transactions for which the plaintiff was adjudged guilty by the committee set up by the board of the 1st defendant in this case appears to have been condoned by the 1st defendant. I hold that the plaintiff validly resigned his appointment."
The decision was based on findings of fact, which have not been appealed against. The findings were referred to and relied upon by the appellants in paragraphs 5, 6 and 7 of their counter affidavit to the originating summons at pages 35 - 36 of the record wherein it was averred as follows:
"5. That further to the averments in paragraph 4 thereof, while it is true to state that the honourable Court kept within the scope of the issues before it, it is clear that after considering the evidence at the trial and the arguments of all counsel, the court further held that any bank officer who has been found guilty of misconduct in relation to his duties, can be validly blacklisted by the CBN.
6. The trial court specifically found as FACTS the following: -
(i) that the Plaintiff appeared before a Board Committee set up to investigate illegal foreign exchange transactions by Foreign Exchange Documentation Department of which he, the plaintiff, was Head;
(ii) that the said committee submitted a report which found the (three) officials, including the plaintiff, guilty of misconduct in relation to their duties;
(iii) that the trial court held the Committee's report as having adjudged the plaintiff guilty of misconduct arising from the illegal foreign exchange transactions;
(iv) that the Central Bank of Nigeria can invoke the provisions of Section 44 (2) (d) of BOFIA to "blacklist" a bank officer who has been found guilty of misconduct in relation to his duties;
(v) that the plaintiffs resignation was not voluntary but induced by his employers following the Committees report of his misconduct, thus foisting a stalemate and state of helplessness and inability of the plaintiff to retain his job and/or sustain his career any further.
7. That the plaintiff has not appealed against any of the above findings of the trial court."
Those findings are quite damning. There is no appeal against them. They remain binding on the parties until set aside by an appellate court. Both judgments are judgments of the Federal High Court. His Lordship Okeke, J., in the absence of any appeal against the judgment of Abutu, J. could not have done otherwise than adopt the findings and conclusions made therein since he was being called upon to direct the defendants to comply with it.
Section 174 (1) & (2) of the Evidence Act, 2011 provides:
174 (1) If a judgment is not pleaded by way of estoppel, it is as between the parties and privies deemed to be a relevant fact, whenever any matter, which was or might have been decided in the action in which it is given, is in issue or is deemed to be relevant to the issue in any subsequent proceeding.
(2) Such judgment is conclusive proof of the facts which it decides, or might have decided, if the party who gives evidence of it had no opportunity of pleading it as an estoppel."
Suit No. FHC/L/CS/163/2003 before Abutu, J. was predicated on the respondent's contention that having accepted his letter of resignation and paid his entitlements, which had determined the master/servant relationship between him and Equity Bank of Nig. Ltd., the bank was not entitled to. terminate his appointment. The reliefs sought in the statement of claim are reproduced in Exhibit DM1. He sought, inter alia, a declaration against the 2nd defendant (1st appellant herein) that he had not breached any of the provisions of the Banks and other Financial Institutions Act 1991 and a declaration that the 2nd defendant could not rely on the purported letter of termination dated 5th February, 2003 to blacklist him under Section 44(4) of BOFIA, having resigned his appointment on 10th October, 2002. The section provides:
"44 (4) Any person whose appointment with a bank been terminated or who has been dismissed for reasons of fraud, dishonesty or conviction for an offence involving dishonesty or fraud shall not be employed by any bank in Nigeria."
At the trial before Abutu, J, the respondent had contended that he was not aware of the reason for his disengagement, that he was not aware that the committee produced a report containing findings and recommendations and he denied being indicted by the committee. In its defence the 2nd defendant relied on Exhibit 9, the proceedings of the committee, which showed that the respondent participated in the proceedings and Exhibit 10, the report of the committee, which indicted the respondent and two other officers. After considering the evidence led by both sides the court found and held that the report showed that the respondent was guilty of serious misconduct arising from illegal foreign. exchange transactions. In order to determine the circumstances and legal effect of the respondent's resignation vis a vis the subsequent purported termination, the court had to consider the facts that gave rise to it. It found that the resignation was not voluntary. That the respondent was compelled to resign as a result of his indictment by the committee. The learned trial Judge frowned at the fact that the illegal activity was apparently condoned since the respondent was merely asked to resign. It however concluded, as stated earlier, that having accepted his resignation the defendants could no longer terminate his appointment.
The respondent contends that the issues in FHC/L/CS/163/2003 are not the same as in FHC/L/CS/205/2008 as the former was predicated on the provisions of Section 44(4) of BOFIA while the latter arose from facts that occurred after the judgment of Abutu, J. and was predicated on Section 44(2)(d) of the Act. Sections 44(1) & (2)(d) of the Act provide:
"44. (1) Every bank shall, before appointing any director or chief executive, seek and obtain the Bank's written approval for the proposed appointment.
(2) No person shall be appointed or shall remain a director, secretary or an officer of a bank who
(d) is guilty of serious misconduct in relation to his duties."
By Section 1(1) of the Act, "the Bank" (as underlined) means the Central Bank of Nigeria.
Issue estoppel arises in a subsequent suit when the issue involved in the later suit has been raised and distinctly determined in a previous suit between the same parties or their privies. The decision relied upon for the plea of estoppel must be final and the parties must be the same. See: Anwoyi Vs Sodeke (2006)13 NWLR (Pt.996) 34: Udo Vs Obot (1989) 1 NWLR (Pt.951) 59, Issue estoppel may arise where a plea of res judicata could not be established because the causes of action are not the same. See: Adedayo Vs Babalola (1995) 7 NWLR (Pt.408) 383 where this court at pages 402 H and 405 B - C held:
"Even if the objects .of the first and second actions are different, as in the instant case, the finding on a matter which came directly in issue in the first action - whether the Agbonbifa family is a ruling family for the purpose of the Elesie Chieftaincy Stool - was embodied in the earlier decision. That decision is final and conclusive in this second action which involves the parties or their privies.
A party is precluded from contending in perpetuity any precise point, which, having been once distinctively put in issue has been properly determined against him. And even if the objects of the first and second actions are different (as in this case), the finding on a matter which came directly (not collaterally or incidentally) ... in issue in the first action, provided it is embodied in a judicial decision that is final (also as in this case), is conclusive in a second action between the same parties and privies. It has been held that this principle would apply whether the point involved in the earlier decision and to which the parties are estopped, is one of law or one of mixed law and fact.
In the circumstances of this case, the judgment of Abutu, J. in FHC/L/CS/163/2003, is a final one, not appealed against. The 1st appellant and the respondent were parties to both suits. The 2nd appellant herein is a privy of the 1st appellant. The circumstances of the respondent's resignation from Equity Bank of Nigeria Limited were specifically in issue in that suit and finally determined by Abutu, J. The general rule is that a plea of estoppel must be specifically pleaded. However, it is not necessary to plead it in any particular form so long as the facts constituting estoppel are stated in such a manner as to show that the party pleading relies on it as a defence or answer. See: Alakija Vs Abdulai (1998) 6 NWLR (Pt.552) 1 (5) 15 A - B: Ezewani Vs Onwordi (1986) 4 NWLR (Pt.33) 27. Suit no. FHC/L/CS/163/2003 before Abutu, J. was initiated by way of originating summons where pleadings are not filed. However in paragraph 6 of the appellants' counter affidavit the intention to rely on issue estoppel was clearly indicated. I am of the view that even though the two suits were predicated on different provisions of BOFIA, the substratum of both suits was the. report of the Special Committee, which indicted the respondent. The finding of the court in the earlier suit that the respondent was indeed indicted by the said report, not appealed against, is valid and subsisting. Okeke, 1 did not make any pronouncement on the report. He adopted the findings of Abutu, J. I hold that the trial court was entitled to adopt and rely on the said unappealed findings of fact made in the earlier judgment. This issue is accordingly resolved in favour of the appellants.
Whether there was sufficient evidence before the Court of Appeal to justify the reversal of the decision of the trial court and consequent grant of the relief of de-blacklisting sought by the respondent.
This issue is substantially similar to the respondent's issue 1.
Relying on Sections 132, 133 and 136 (1) of the Evidence Act, 2011 learned counsel for the appellant submitted that the burden was on the respondent to prove his case. He submitted that he was required to succeed on the strength of his case. He referred to: Momoh Vs Umoru (2011) 15 NWLR (Pt.1270) 217 where it was held that where the respondents had not set up a counterclaim, the burden on them was just to defend the suit after the appellants must have discharged the burden placed on them.
He also relied on: G& T Investment Co. Ltd. Vs Witt Bush (2011) 8 NWLR (Pt. 1250) 500 @ 531 B. He submitted that the appellant's main relief before the trial court was for an order directing the 2nd defendant to comply with the declaration of Abutu, J. in the judgment delivered on 11th April 2005 i.e. Exhibit DM1. He referred to the 5 questions for determination on the originating summons and argued that nos. 1 and 2 are the main reliefs, while questions 3, 4 and 5 are ancillary, as they are dependent on a favourable resolution of nos. 1 & 2. For ease of reference, the 5 questions for determination are reproduced hereunder:
1. Whether the Defendants could blacklist the plaintiff under S.44 (2) (d) of BOFIA?
2. Whether the act of blacklisting the Plaintiff by the 2nd defendant's letter of 19thSeptember, 2005 is not a violation and act of disrespect to the judgment of Abutu, J. delivered on 11th April, 2005?
3. Whether the defendants ought to be compelled to delete the name of the plaintiff from the list of blacklisted persons?
4. Whether the act of the defendants has unlawfully deprived the plaintiff of securing gainful employment and loss of earnings?
5. Whether the plaintiff is entitled to damages claimed?
Learned counsel submitted that by exhibiting and relying on Exhibits DM1 - DM4, the respondent believed the documents sufficient to convince the court that he was entitled to the reliefs sought. With regard to question 1, he submitted that the court had already pronounced in Exhibit DM1 at pages 23 - 24 of the record that the Central Bank of Nigeria could invoke the provisions of Section 44(2)(d) of BOFIA against a person found guilty of serious misconduct and had also found at page 21 of the record that the respondent was guilty of misconduct arising from illegal foreign exchange transactions. With regard to question 2, he submitted that the court, in Exhibit DM1 at page 24 of the record, had pronounced that no blacklisting had been done even though the appellants had the power to do so under Section 44(2)(d) of BOFIA. He contended that the most important document the court was bound to examine was Exhibit DM1 and that it did so painstakingly. He submitted that the Special Committee Report was not necessary for the determination of the questions raised by the respondent because it was in evidence before Abutu, J. who made findings on it in his judgment. He submitted that an appellate court would not usually interfere with findings of fact made by a trial court where such findings are supported by evidence. He referred to: Momoh Vs Umoru (supra) at 271 D.
Learned counsel argued further that assuming, without conceding, that the Special Committee Report ought to have been before the trial court, it was the respondent's duty to produce it to show that he was neither indicted nor implicated in any act of misconduct. He submitted that he would not have been able to do so in light of the subsisting finding of Abutu, J. on the issue. He submitted that the respondent admitted the existence of the report but failed to produce it because it would have been unfavourable to him. He relied on Sections 167(d) and 123 of the Evidence Act. He submitted that the evidence before the trial court, particularly Exhibit DM1 was completely against the case put forward by the respondent and he had no choice but to sink with it. He submitted that the evidence did not entitle him to any of the reliefs sought.
Learned counsel observed that at pages 115 to 116 of the record, the court below held that in the absence of the Committee Report, there was insufficient evidence before the court upon which it could reach a determination as to whether or not the respondent should be blacklisted. He argued that it was contradictory for the court to thereafter make an order at page 118 of the record that the name of the appellant be de-blacklisted. He submitted that having failed to lead sufficient evidence to prove that he ought not to have been blacklisted, the respondent's case was rightly dismissed by the trial court. He submitted that where a trial court, which observed and heard witnesses who testified before it, has performed its duty of evaluating the evidence and drawing conclusions therefrom, an appellate court would not interfere unless it is demonstrated that such conclusions are perverse and not supported by credible unchallenged evidence. He relied on: Dakolo Vs Rewane-Pakolo (2011) 16 NWLR (Pt.1272) 22 @ 60 E - F. He submitted that the lower court was wrong to have set aside the decision of the trial court in the circumstances of this case, as its effect is to overturn some of the findings of fact in Exhibit DM1, which judgment was not before it on appeal.
In response, learned counsel for the respondent contended that there is a difference between the legal burden of proof and the evidential burden. He submitted that the legal burden is the burden of establishing a case while the evidential burden is the burden of adducing evidence. He submitted that while the legal burden is always stable, the evidential burden may shift constantly depending on how the scale of evidence preponderates. He cited the case of: Odukwe Vs Ogunbiyi (1998) 6 SC 72. He argued that the complaint of the appellants is in relation to the evidential burden. He referred to Section 131 of the Evidence Act. He contended that the only way the appellants could have satisfied the court that the respondent's blacklisting was based on the verdict of the Special Board Committee, which it referred to in Exhibit DM3, was by the production of the report. He submitted that it was not open to the trial court to speculate on the content of the report. He submitted further that the blacklisting of the respondent was not an issue considered by Abutu, J. in FHC/L/CS/163/2002, as it arose upon the issuance of Exhibit DM3 which came after the judgment. He maintained that the issues in the two suits were not the same, as the judgment in Exhibit DM1 related to Section 44(4) of BOFIA while the suit that gave rise to this appeal related to Section 44(2)(d) of the Act. He submitted that failure to produce the report-of the committee meant that the appellants had failed to justify the blacklisting of the respondent.
Learned counsel submitted that the authority of Momoh Vs Umoru (supra) relied upon by learned counsel for the appellants is not applicable to this case, as it relates to ascribing probative value to evidence while the instant case is concerned with reliance on inadmissible evidence of the findings made by Abutu, J. He also argued that contrary to the submission of learned counsel that the respondent's main relief was relief 2, the main relief was for an order de-blacklisting him. He submitted further that the principle that a plaintiff must rely on the strength of his own case and not on the weakness of the defence, is only relevant in claims for declaration of title to land.
The law is that he who asserts must prove. In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleading. It is also trite that the burden of proof of particular facts shifts from side to side throughout the proceedings until all the issues in contention have been dealt with. See Sections 131- 133 of the Evidence Act, 2011.
In the instant case, the respondent's main reliefs before the trial court were questions 1 and 2 reproduced above. In the main, the respondent, as plaintiff in that suit had the burden of satisfying the court that the defendants/appellants had no right to blacklist him under Section 44(2)(d) of BOFIA, which is repeated here for ease of reference. It provides:
"44. (2) No person shall be appointed or shall remain -a director, secretary or an officer of a bank who
(d) is guilty of serious misconduct in relation to his duties."
The respondent, in an attempt to establish his case, placed reliance on the judgment in FHC/L/CS/163/2003. The judgment of Abutu, J. annexed to the summons as Exhibit DM1 remained evidence before the court. The issue for determination in Exhibit DM1 was whether having accepted the respondent's resignation and paid his entitlements, the defendants could later reject his resignation and purport to terminate his employment in order to blacklist him under Section 44(4) of BOFIA. The circumstances that led to the respondent's resignation were relevant facts before that court. Abutu, J. found that the report of the Special Committee indicted the respondent of serious misconduct and that by merely advising him to resign instead of terminating his appointment, his employer, Equity Bank of Nigeria Ltd., appeared to have condoned the misconduct. He however concluded that since the bank had accepted his resignation and paid him his entitlements, the resignation was valid and therefore the bank could not turn around to terminate the same appointment in order to invoke the provisions of Section 44(4) of BOFIA. He held that in order for Section 44(4) to be operative, the affected persons' appointment must have been terminated on grounds of fraud, dishonesty or upon conviction for an offence involving dishonesty or fraud. Thus termination of appointment for the reasons stated is the basis for the activation of Section 44(4) of the Act.
Section 44(2)(d) of the Act on the other hand operates where a person seeking appointment in the management of a bank, must obtain the prior consent of the Central Bank of Nigeria, which has a statutory duty to withhold such consent where the applicant has been found guilty of serious misconduct in relation to his duties. The Act does not define 'serious misconduct'. What amounts to serious misconduct where not specifically defined would depend on the facts of a particular case. Gross or serious misconduct has been described as conduct of such grave and weighty character as to undermine the relationship of confidence, which should exist between the employee and his employer. See: Yusuf Vs U.B.N. (1996) 6 NWLR (Pt.457_ 632: Babatunde Ajayi Vs Texaco Nig. Ltd. & Ors. (1987) 3 NWLR (Pt.62) 577: Osakwe Vs Nigerian Paper Mill Ltd. (1998) 7 SC (Pt.2) 108. Illegal foreign exchange transactions carried out in violation of banking regulations certainly amounts to serious misconduct. The banking industry is one of the institutions where a high level of confidence and trust is expected of employees. The Central Bank of Nigeria performs a supervisory role over banks and other financial institutions in Nigeria. See Section 37(b) of the CBN Act Cap. C4, LFN 2004 & Section 48 of BOFIA, 2004.
In reaction to the respondent's application for clearance for appointment with National Bank of Nigeria, the 1st appellant in its letter dated 19th September, 2005 (Exhibit DM3), relied on the verdict of the Special Committee on Foreign Exchange Transactions of Equity Bank to the effect that he had been found guilty of foreign exchange dealings and notified him that he had been blacklisted. The contention of the respondent is that in order to justify the blacklisting, the appellants ought to have tendered the report. Having regard to the peculiar facts of this case, I disagree. The report was before Abutu, J. in FHC/L/CS/163/2003. He made far reaching findings thereon, including the fact that the respondent was found guilty of serious misconduct by the Special Committee. The findings have not been appealed against till date. The judgment in FHC/L/CS/163/2003 was specifically made a part of the respondent's case. Having regard to the finding of the learned trial Judge in Exhibit DM1, the onus was on the respondent who would fail if no further evidence was lead on either side, to satisfy the court that he was not indicted by the report. He ought to have produced it since he was the one asserting that he ought not to have been blacklisted. He cannot approbate and reprobate. He cannot rely on a part of the judgment, which is in his favour and jettison those aspects he does not agree with. Once the appellants were satisfied that the respondent had been found guilty of serious misconduct in relation to his duties, they were entitled to invoke Section 44(2)(d) of BOFIA to blacklist him notwithstanding the fact that he had resigned his appointment. As a supervisory bank, the CBN has a responsibility not to permit a person who has been indicted for serious misconduct in the performance of his duties bordering on dishonesty, to find his way back into any bank or other financial institution. The decision of the trial court was based on the evidence before it. There was nothing before the lower court to show that the decision of the trial court was perverse. It is only where the decision of the trial court is shown to be perverse that an appellate court would be entitled to interfere. I reiterate once again the decisions in the two suits were judgments of the same court. In the absence of an appeal against the specific findings of Abutu, J. in FHC/L/CS/163/2003, His Lordship Okeke, 1 was quite in order to have relied on those findings in reaching his conclusions. The onus was on the respondent to show that there were special circumstances warranting the interference of the court below. He failed to do so. The court therefore erred in setting aside the decision and ordering the de-blacklisting of the respondent. This issue is accordingly resolved in favour of the appellants and against the Respondent.
In conclusion the appeal is meritorious. It is hereby allowed. The judgment of the Court of Appeal, Lagos delivered on 22/3/2010 is hereby set aside. The judgment of the Federal High Court delivered on 14/7/2008 is hereby restored.
The parties shall bear their respective costs in the appeal.
EJEMBI EKO, JSC: I read in draft the judgment just delivered in this appeal by my learned brother, K. M. O. KEKERE-EKUN, JSC. I hereby adopt the Judgment as I agree entirely with my learned brother on all the issues as resolved.
The respondent was the Divisional Head of Department in charge of foreign exchange documentation at Equity Bank of Nigeria Limited. In 2002 the Central Bank of Nigeria (CBN), 1st Appellant, revoked the bank's license to conduct foreign exchange transaction when it was discovered that Equity Bank of Nigeria Ltd was selling foreign exchange in flagrant violation of laid down procedures. The bank was penalised by the CBN in the sum of N293,129,000.00. As a result, the board of Equity Bank advised the respondent and two others to resign their appointments. The respondent accordingly submitted his resignation on 10th October, 2002. He did not voluntarily resign his appointment. The resignation was a compulsory one. In my firm view this amount to constructive dismissal associated with misconduct. That is the respondent's complicity in illegal foreign exchange transaction, the soft landing given to him by Equity notwithstanding.
The CBN, the regulatory body, was in my view right to have regarded the actions of the respondent on which he was advised by the board of Equity Bank to resign as constituting serious misconduct under Section 44(2)(d) of the Banks and other Financial Institutions Act, 1991 (BOFIA), as amended.
The board of Equity Bank did not just direct the respondent to resign his appointment. It had set up a Special Committee on Foreign Exchange Transactions of Equity Bank to investigate and establish the respondent's complicity. The Special Committee found him guilty of illegal foreign exchange transactions. That report has not been set aside.
The CBN as a regulatory body has a duty to keep shady characters from holding appointments in the commercial banks. That function of CBN has not been denied. I think it would have been dereliction of duty on the part of CBN to have closed its eyes to the obvious misconduct of the respondent as found by the Special Committee. The respondent, if he was aggrieved by the indictment of the Special Committee, should have taken necessary steps to overturn the report. This he never did. He is therefore estopped from insisting that he was not found guilty of serious misconduct while he discharged his office as Head of Department in charge of foreign exchange portfolio of Equity Bank.
The CBN has a discretion to exercise in respect of the respondent's application to it to clear him for another appointment in National Bank of Nigeria. I cannot fault CBN decision refusing to clear the respondent for that appointment. The CBN, in my firm view, was right in predicating its decision on the report of the Special Committee which had indicted and found the respondent guilty of illegal foreign exchange transactions while in the employment of Equity Bank.
The respondent's suit was conceived to compel the CBN to exercise its discretion. I do not think that the suit is well founded. The CBN cannot be compelled to exercise its discretion in a manner favourable to the respondent. I had earlier stated that, in view of the report of the Special Committee that found the respondent guilty of illegal foreign exchange transactions, it would amount to dereliction of duty for the CBN to have cleared or recommended the respondent for appointment in another commercial bank. The respondent's past reprehensible serious misconduct, does not speak well for his appointment in another commercial bank. Characters like the respondent do not deserve a place in sensitive banking institutions over which the CBN is the regulatory body.
The lead judgment which I adopt has given fuller reasons for allowing this appeal. I allow the appeal. The judgment of the Court of Appeal delivered in the appeal No. CA/L/786/2008 on 22nd March, 2010 is hereby set aside. In its place the decision of the Federal High Court delivered in the suit No. FHC/L/CS/305/2000 on 14th July, 2008 is hereby restored.
I make no order as to costs.
CLARA BATA OGUNBIYI, JSC: The facts and the background history giving rise to this appeal have been well and clearly spelt out by my learned brother, kekere-Ekun, JSC in her lead judgment. I do not have reason to repeat same.
My learned brother had dealt with the two issues raised in this appeal comprehensively and I hereby adopt his judgment as mine.
For the sake of emphasis however, I wish to say a word or two in respect of the 1st issue raised by the appellant. The issue in other words, poses a question whether the appellants were entitled to rely on the findings of fact in an earlier judgment as a defence in the later action.
With reference made to the record of appeal and specifically at page 116, the lower court on the issue of Estoppel had this to say:-
"This is not a question of relying on facts already established in another judgment as parties did not plead issue Estoppel nor Res Judicata."
For the determination as to whether or not the principle of estoppel applies, recourse must be had to the case of the Respondent at the trial court; which as rightly submitted by the counsel for the appellant was predicated mainly on the findings and conclusions of the earlier judgment by Abutu J. - per Exhibit DM1. With the respondent laying a complaint in the later suit that the appellants had not complied with the earlier judgment, there can be no misgiving that what was an issue at stake was the judgment.
The respondent herein was the plaintiff before Abutu J. who made an order setting aside the termination and blacklisting of the respondent under section 44(4) of the Banks and other Financial Institution Act 1991 (as amended).
As rightly submitted by the counsel for the appellants also, on a careful perusal of the judgment of the trial court per Abutu J. it is pertinent to note that his lordship had made some findings of fact which are very crucial. An example is where the court at pages 20 and 21 of the Record of appeal said:-
The evidence on both sides which I accept is that the Plaintiff was an employee of the 1st Defendant and that the Plaintiff took part in the foreign exchange transactions in respect of which the 1st Defendant was penalized in the sum of &293.129million for illegal foreign exchange transactions and its dealership licence suspended indefinitely.
There is no documentary evidence before me in this case which shows that the Plaintiff has been blacklisted
..Exhibit 10 is the report of the committee wherein the Plaintiff, Messrs Kalu and Adegboye were adjudged guilty of forex malpractices. The evidence is that notwithstanding the findings of the committee that the three officers were guilty of foreign exchange malpractices, the 1st Defendant merely advised them to resign. The Plaintiff resigned and his resignation was accepted by the 1st Defendant.
The misconduct of the Plaintiff arising from the illegal foreign exchange transactions for which the Plaintiff was adjudged guilty by the Committee set up by the board of the 1st Defendant in this case appears to have been condoned by the 1st Defendant I hold that the Plaintiff validly resigned his appointment."
The judgment of Abutu J. dated 11th April, 2005 (Exhibit DM1) was one of the four documents attached to the originating summons taken out by the respondent and filed on 31st March, 2008 against the appellants at the Federal High Court for determination.
The respondent herein in the circumstance sought to rely on the judgment Exhibit DM1 which is not shown to have been appealed against.
It is needless to re-affirm therefore that the respondent is deemed to have relied on every part of the judgment inclusive of the findings of facts made, whether favourable or otherwise. It is not now open to the respondent to pick and choose a favourable part of the judgment while at the same time seek to jettison the findings of fact deemed as unfavourable. See the view held by this Court in A.C.B. Plc V. Losada (Nig) Ltd. (1995) 7 NWLR (Pt. 405) 26 at 53 that-
"Where the words of an order made by a court are clear and are free from ambiguity in themselves and there is no doubt as to the subject matter to which they relate, they are to be given their strict, plain and their common meaning."
Again, see the case of K. T. & Ind. Pic. V. The Tug Boat "M/V/Japaul B" (2011) 9 NWLR (Pt. 1251) 133 at 157 - where judgment or order of every law court remains in force and binding until it is set aside on appeal by a court of competent jurisdiction.
As rightly submitted by the appellants' counsel, the document Exhibit DM1 has shown clearly that the questions presented by the respondent at the trial court had been decided by the judgment of Abutu, J. In the result, I hold that the trial court, did rightly base its decision on the findings of the earlier judgment as it did.
I seek to state further that it is not within the power and jurisdiction of the trial court, as a court of co-ordinate jurisdiction, to upturn the judgment of Abutu, J. Again see the case of Okoye V. Nigerian Cons. & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501 at 538.
Therefore, as rightly submitted by the learned counsel on behalf of the appellants, the lower court, misapplied the principle in relation to the trial court's reliance on the judgment of Abutu, J. (Exhibit DM1). It would, in other words, have tantamount to judicial rascality if the trial court had interfered with the findings of fact made by Abutu, J. being a court of co-ordinate jurisdiction. This, the trial court could not have done. It is obvious therefore that the lower court did fell into great error as it did and the issue herein is resolved in favour of the appellants.
My learned brother Kekere-Ekun, JSC, has resolved both Issues adequately and I endorse her well considered judgment and adopt same as mine.
In terms of the lead judgment, I also allow this appeal and set aside the judgment of the Court of Appeal, Lagos Division delivered on 22/3/2010, while the judgment of the Federal High Court delivered on 14/7/2008 is also restored by me. I further abide by the order made as to costs.
ELUBODE B. OMOBORIOWA ESQ. for the Appellants.
A. M. MAKINDE ESQ. for the Respondent with: S. Odumosu Esq. and M. Gambo Esq.