REFLECTIONS ON LORD CHIEF JUSTICE HEWART’S APHORISM IN THE LIGHT OF THE COURT OF APPEAL DECISION IN APPEAL NO: CA/L/888/14 RCN NETWORKS & ANOR V. GUARANTY TRUST BANK PLC
Introduction
The recent judgment of the Court of Appeal, Lagos Judicial Division delivered on 18th of June, 2025 in APPEAL NO: CA/L/888/14 RCN Networks Limited & Alhaji Si-Nuraini A. Abiola V. Guaranty Trust Bank Plc seemingly accentuates, albeit in an unusual manner, the enduring relevance of the locus classicus aphorism- “Justice must not only be done, but must also be seen to be done” which was popularized by the iconoclast- Lord Chief Justice Hewart(then Lord Chief Justice of England) in the case- R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, 259, heard at the King’s Bench division over a century ago.
The said appeal- APPEAL NO: CA/L/888/14 is an offshoot of the suit initiated by Guaranty Trust Bank Plc(the Respondent at the Appeal Court) at the Federal High Court, Lagos seeking inter alia to appoint a Receiver and enforce the Tripartite Deed of Legal Mortgage over the property of RCN Networks Limited(the 1st Appellant at the Appeal Court) at Plot 2A&B, Oyinkan Abayomi Street, Ikoyi, Lagos, of which Alhaji S.A Abiola(the 2nd Appellant at the Appeal Court) provided a Personal Guarantee. The final judgment of the Federal High Court, Lagos was delivered in favour of the Respondent Bank on the 20th of June 2014.
Considering the trite position that our legal jurisprudence is anchored on the venerated doctrine of stare decisis, the prediction of judicial decisions by means of mathematical models in the fairly sustained debate on the relevance of these models may not be outrightly derided as a voyage into River Acheron with a matchbox, particularly when extrapolated against the background of the well-defined standard of proof in both civil and criminal cases under the Nigerian Evidence Act of 2011. After all, a vital element of the rule of Law is legal certainty!
Background of Case At The Federal High Court, Lagos
Guaranty Trust Bank Plc initiated the action at the Federal High Court, Lagos vide Originating Summons seeking inter alia:
AN ORDER of Perpetual Injunction restraining the 1st and 2nd Defendants, their privies, agents, and servants from interfering with, obstructing, disturbing and/or frustrating MR. NORRISON I. QUAKERS SAN the Receiver/Manager appointed by the Plaintiff from exercising the powers vested in him or performing his duties as Receiver/ Manager over the asset listed in the SCHEDULE OF THE DEED OF TRIPARTITE LEGAL MORTGAGE.
AN ORDER of Perpetual Injunction restraining the Defendants and indeed all other Directors and the officials of the 1st and 2nd Defendants access to any sum outstanding to the credit of the 1st and 2nd Defendants until the sum of N970, 743, 041.15 (Nine Hundred and Seventy Million, Seven Hundred and Forty-Three Thousand, Forty-One Naira, Fifteen Kobo) being owed by the 1st Defendant to the Plaintiff is fully liquidated.
On the part of the Appellants, they contended amongst others at the Lower Court in their Counter Affidavit filed in opposition to the Originating Summons that the Respondent Bank excessively charged and applied interest rates, imposed excessive charges, amongst others.
The Decision of the Federal High Court, Lagos
The Federal High Court in its judgment in favour of the Respondent Bank held thus-
‘I do not see what issues in controversy that will arise in the course of the Court’s interpretation of the provisions of the said Deed. I am of the humble view that interpretation of the provisions of the Deed and other documentary exhibits before the Court, which are the documents embodying the agreements of the parties, will invariably, show whether or not the 1st and 2nd Defendants are indebted to the Plaintiff to the tune of N970,743,041.15 (Nine Hundred and Seventy Million, Seven Hundred and Forty-Three Thousand, Forty-One Naira, Fifteen Kobo) as claimed and whether the Plaintiff is entitled to recover same. Accordingly, I hold that the Plaintiff is person (sic) claiming to be interested under a written contract, i.e. the Deed of Tripartite Legal Mortgage, it is entitled to apply by originating summons for the determination of any question of construction arising under the said Deed of Tripartite Legal Mortgage dated the 15th August 2012 and other supporting documentary exhibits in this action for a declaration of its rights.’
Arguments Canvased And Documents Placed Before the Court of Appeal, Lagos
It is instructive to note that the above finding of the Federal High Court Lagos on the ‘validity’ of the Tripartite Deed of Legal Mortgage was never challenged in the initial Notice of Appeal filed by the Appellants, however the Appellants following the grant on 6th April, 2022 of their Motion for Leave to argue Additional Grounds of Appeal dated 24th of March, 2021(which the Respondent had vehemently opposed as being overreaching but the Court of Appeal, Lagos proceeded to grant same) had filed an amended Notice of Appeal dated 24th of March 2021 and an amended Appellants’ Brief of Argument dated 24th of March 2021. Ground 3 of the amended Notice of Appeal dated 24th of March 2021 raised the new issue of the validity of the Tripartite Deed of Legal Mortgage, particularly on the effect of invalid execution by the Appellants of the Deed; same issue was extensively argued in the amended Appellants’ Brief of Argument dated 24th of March 2021.
Remarkably, the Police Special Fraud Unit investigated the Petition of the Appellants on the alleged invalid execution by the Appellants of the Tripartite Deed of Legal Mortgage and found same to be unmeritorious, hence issued its Reports accordingly exonerating the Respondent Bank. Consequently, the Criminal Charge(Charge No. FHC/L/285C/15) initially instituted against the Respondent Bank’s officials bordering on same was struck out accordingly.
Thus, the Respondent in a bid to react to the amendment of the Appellants’ Brief of Argument, following the Order of the Court, to introduce arguments on the ‘validity’ of the Tripartite Deed of Legal Mortgage filed a Motion for Leave to Adduce Additional Evidence on Appeal to place relevant documents before the appellate Court on the alleged forgery of the said Deed. The Appellants initially filed a Counter Affidavit in opposition to same but withdrew it, hence the Motion was granted on February 6, 2025 unopposed. Thus, by virtue of this Motion, the following documents formed part of the documentary evidence specifically drawn to the attention of the Court of Appeal, Lagos by the Respondent Bank:
The first and second Report of the Police Special Fraud Unit on the 2nd Appellant’s Petition against the Respondent bordering on the alleged forgery of the Tripartite Deed of Legal Mortgage.
Certified True Copy of the Striking Out Order of Hon. Justice Tsoho of the Federal High Court Court, Lagos dated 23rd day of October 2015 in Charge No. FHC/L/285C/15 which was initially filed on the 23rd of September 2015 against certain officials of the Respondent Bank for alleged forgery of mortgage instrument.
In addition, by virtue of the duly acknowledged letter dated 2nd April, 2025 addressed to the DCR Court of Appeal Lagos, which was received by the Court on 4th April 2025, the CTC of the judgment of Hon. Justice Ashade of the Lagos State High Court delivered on July 12, 2024 in SUIT NO. LD/6148LMW/2018 RCN Networks Limited & Alhaji Si-Nuraini A. Abiola V. Guaranty Trust Bank Plc & Ors bordering on the alleged forgery of mortgage instrument was placed before the Court of Appeal, Lagos. By way of background, the said judgment of Hon. Justice Ashade was drawn to the attention of the Court of Appeal during the hearing of the Appeal on 25th March 2025 in open Court by the lead Counsel to the Respondent.
Of note in the said suit- SUIT NO. LD/6148LMW/2018 RCN Networks Limited & Alhaji Si-Nuraini A. Abiola V. Guaranty Trust Bank Plc & Ors, the main relief sought by the Appellants in APPEAL NO: CA/L/888/14 who filed same despite the pendency of the Appeal is as follows:
“AN ORDER setting aside the sale of the 2nd Claimant’s property located at No. 2A Oyinkan Abayomi Drive, Ikoyi, Lagos State on the grounds that the Tripartite Legal Mortgage pursuant to which same was purportedly sold was forged and fraudulently registered”
While on the subject, an earlier suit- Suit No. LD/574/13 – RCN NETWORKS LTD v. GUARANTY TRUST BANK PLC was similarly filed at the High Court of Lagos State in the pendency of the suit in which the appeal- APPEAL NO: CA/L/888/14 emanated from; Hon. Justice B.A. Oke-Lawal(of blessed memory) earlier struck out same for being an abuse of court process in her Ruling delivered on June 23, 2016.
Remarkably, Hon. Justice Ashade of the Lagos State High Court in SUIT NO. LD/6148LMW/2018 RCN Networks Limited & Alhaji Si-Nuraini A. Abiola V. Guaranty Trust Bank Plc & Ors in dismissing the said suit in its entirety held as follows:
“After admitting to securing the loan facility granted to the Claimants by the 1st Defendant with the property at Plot 2a & b, Oyinkan Abayomi Street, Ikoyi, Lagos State the allegation that Exhibits C12/D16 was forged was an afterthought…Contrary to the submissions of the learned Counsel to the Claimants on the issues 2 to 5 above vis-à-vis the totality of my findings, I agree with the submissions of the learned Senior Counsel to the 1st, 3rd, 4th and 6th Defendants that the Claimants have not discharged the burden of proof imposed on them by law in order to sustain the allegation of forgery or fraud in this instant case against the Defendants or to be entitled to the Reliefs before this Court and I so hold. All the ingredients of the alleged forgery/fraud of Exhibits C12 and D16- the Registered Deed of Tripartite Legal Mortgage dated 15/8/2012 vis-à-vis Exhibit C6 do not co-exist in this suit. In fact the title document of the property was freely deposited with the 1st Defendant by the Claimants.”
Judgment of The Court of Appeal, Lagos in APPEAL NO: CA/L/888/14
The germane question raised by the Court of Appeal, Lagos in upholding the Appeal is as follows:
“Where the authenticity of the Deed or Document as a whole is called into question, can the Court interpret this document and make a pronouncement of the rights of the parties? I think not”
Then the Court of Appeal relying on the decision in APC v. Elebeke & Ors (2021) LPELR-52930(CA) on the general rule on the propriety of the Court resolving contentious suits where Affidavit evidence is being relied upon in adjudication held as follows:
“Why the Lower Court decide elected to believe one side over the other when this allegation was raised is befuddling. Therefore in line with the position of the law, it is my firm view that the lower Court was in error by proceeding to determine the allegation of forgery on affidavit evidence alone. This court cannot endorse the decision of the lower Court on this basis”
The Shortfalls of the Decision of The Court of Appeal in APPEAL NO: CA/L/888/14
The detection of crime is the responsibility of the Police. see Ayinde V. State (2018) LPELR-44761(SC); Section 4 Police Act 2020; Section 214 CFRN 1999(as amended). Regrettably, the Court of Appeal curiously failed to give credence to the conclusive Reports of the Police Special Fraud Unit on the 2nd Appellant’s Petition against the Respondent bordering on the alleged forgery of mortgage instrument coupled with the Certified True Copy of the striking out Order of Hon. Justice Tsoho of the Federal High Court Court, Lagos dated 23rd day of October 2015 in Charge No. FHC/L/285C/15 which was filed on the 23rd of September 2015 against certain officials of the Respondent for alleged forgery of mortgage instrument.
The novel issue of the validity of the Tripartite Deed of Legal Mortgage, particularly the alleged invalid execution by the Appellants was not supported by any fresh evidence before the Court of Appeal to warrant the Court of Appeal departing from the decision of the Lower Court. The Appellate Court is bound by the record of proceedings before the Lower Court since it is settled law that the assessment of evidence and ascription of probative value to same is the duty of the trial Court. See Amadi Vs Federal Republic of Nigeria (2008) 12 SCM (PT 2) 217. An appellate Court must read the record of appeal in its exact content. see Udo v. State (2006) 15 NWLR (Pt.1001) 179
A Motion for Leave to Adduce Additional Evidence on Appeal to bring in the relevant documents on the alleged forgery of the mortgage instrument filed by the Respondent was granted on February 6, 2025 without any opposition since the Appellant withdrew their Counter Affidavit, yet the Court of Appeal failed to appreciate the full import of the fresh evidence and the uncontroverted affidavit evidence in the said Motion. This in itself defeats the purport of the Ruling of the Court of February 6, 2025 allowing fresh evidence to be adduced in the said appeal. The law is settled that where depositions in an affidavit are not denied by way of a counter affidavit, they are generally deemed admitted and the Court is to act thereon. See Micah & Ors V. Hon. Minister of the FCT & Anor (2018) LPELR-44917(CA)
The outright failure of the Court of Appeal to refer to and rely on the judgment of Hon. Justice Ashade of the Lagos State High Court delivered on July 12, 2024 in SUIT NO. LD/6148LMW/2018 RCN Networks Limited & Alhaji Si-Nuraini A. Abiola V. Guaranty Trust Bank Plc & Ors bordering on the alleged forgery of mortgage instrument is befuddling in itself. The said judgment of Hon. Justice Ashade was drawn to the attention of the Court of Appeal during the hearing of the Appeal on 25th March 2025 in open Court by a Learned Silk, the lead Counsel to the Respondent. By a Letter dated 2nd April, 2025 addressed to the DCR Court of Appeal Lagos, the CTC of the said judgment was placed before the Court of Appeal, Lagos. Stating it pronto and perforce, judicial decisions must be based on the record before the Court, as affirmed by the apex Court in Sommer & Ors VS. FHA (1992) LPELR – 3103 (SC). In addition, the apex Court per Hon. Justice Paul Adamu Galumje, JSC in Barewa Pharmaceuticals Ltd V. FRN (2019) LPELR-47385(SC)(Pp 14 – 15 Paras E – A) held as follows:
“This Court has in a number of decided cases held that a Court of law is entitled to look into its record and make use of any document it considers relevant in determining issues before it. See Fumudoh vs Aboro (1991) 9 NWLR (Pt. 214) 2010 at 229; Agbareh & Anor vs Mimra & 2 Ors (2008) 2 NWLR (Pt. 1011) 378 at 411 – 412; Badejo vs Minister of Education (1996) 9 -10 SCNJ 51.”
There are two well-established exceptions to the general rule on the propriety of a Court resolving contentious suits where Affidavit evidence is being relied upon in adjudication, which the Court of Appeal glossed over in its judgment. The apex Court per Hon. Justice Helen Moronkeji Ogunwumiju, JSC in Jaiyesimi & Anor V. Darlington (2022) LPELR-57344(SC) (Pp 22 – 23 Paras F – C) pontificated same sagaciously thus:
“The law is settled that generally, a Court of law is not competent to resolve conflict in affidavit evidence without calling oral evidence. There is however exception to this rule, one of which is that where the Court has documentary evidence at its disposal which can aid it to resolve the conflict, it can do so without recourse to oral evidence. See EZEGBU V. F.A.T.B LTD (1992) 1 NWLR (Pt.220) 699 at 720; MAGNUSSON V. KOIKI (1991) 4 NWLR (Pt.183) 119. Furthermore, the need to call oral evidence would not arise if the areas of conflict are so narrow or if there are enough documents to assist the Court in the resolution of such conflict.”
Conclusion
The aphorism of the iconoclast- Lord Chief Justice Hewart is not unknown to Nigerian legal jurisprudence. Hon. Justice Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC in Monguno V. Bluewhales & Co. & Ors (2023) LPELR-59997(SC) (Pp 2 – 4 Paras E – A) whilst admonishing appellate Courts to ensure a consideration of all the issues raised on appeal once and for all recently affirmed same eloquently thus:
“The need to consider and pronounce on all issues properly before the Court is to ensure that justice is not only done but seen to have been done. Furthermore, in the event that the trial or intermediate Court’s decision is overturned on appeal, a consideration of all the issues would give the appellate Court the benefit of the reasoning of the lower Court on the issues and the Court would be in a position to resolve the issues in dispute once and for all.
The exception to this rule is where, from the circumstances of the case, the Court intends to order a retrial, in which case the Court must refrain from commenting on issues yet to be tried”
The Courts have evolved with the paradigm shift from the pangs of technicality to dishing out substantial justice. See A.G. Bayelsa State V. Odok (2024) LPELR-63035(SC) Regrettably, the recent decision of the Court of Appeal, Lagos Judicial Division delivered on 18th of June, 2025 in APPEAL NO: CA/L/888/14 RCN Networks Limited & Alhaji Si-Nuraini A. Abiola V. Guaranty Trust Bank Plc is at variance with the admonition of the Learned Chief Justice of Nigeria in Monguno’s case having left several questions unanswered.
Notably, the Court of Appeal’s judgment left unresolved the question- whether the Appellants’ allegation of forgery of the mortgage instrument had indeed been established in the face of the judgment of Hon. Justice Ashade of the Lagos State High Court delivered on July 12, 2024 in SUIT NO. LD/6148LMW/2018 RCN Networks Limited & Alhaji Si-Nuraini A. Abiola V. Guaranty Trust Bank Plc & Ors bordering on the alleged forgery of the mortgage instrument coupled with the Police Investigation Reports?
Moreover, there were documents before the Court of Appeal, Lagos in rebuttal of the forgery allegation of the Appellants. Curiously, the Court of Appeal faulted those relevant documents, vis- the Police Reports exonerating the Respondent Bank and the judgment of a competent Court of law discharging the Respondent Bank’s officials in the ‘forgery Charge’.
Flowing from the above exposition, is it not a mystery why the Court of Appeal Lagos did not pronounce on the resultant actuation of forum shopping flowing from the multiple suits by the Appellants, being a specie of abuse of judicial process. See Mailantarki V. Tongo & Ors (2017) LPELR-42467(SC)
From the foregoing, it is apparent that the judgment of the Court of Appeal in the words of Harriet Jacobs (1813 – 1897) an American Abolitionist & Author that “ THERE ARE WRONGS WHICH EVEN THE GRAVE DOES NOT BURY”,
Justice must not only be done but must also be seen to be done.
