FBN v. MALLAM MADALLA GLOBAL CONCEPT LTD & ORS (2020)

FBN v. MALLAM MADALLA GLOBAL CONCEPT LTD & ORS

(2020)LCN/14599(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, September 10, 2020

CA/A/243/2017

RATIO

PLEADINGS: PARTICULARS OF APPEAL.

Particulars are therefore the real compliant of the Appellant against the judgment appealed against. It is thus trite that the particulars should not be independent complaints from the grounds of appeal as they should be auxiliary to it. See DIAMOND BANK LTD VS. PARTNERSHIP INVESTMENT COMPANY LTD. & ANOR (2009) LPELR – 939 (SC). This means that particulars are intimately related to the ground of appeal and not divorced from them. See also NYAKO VS. ADAMAWA STATE HOUSE OF ASSEMBLY & ORS (2016) LPELR – 41822(SC) and AWUSA VS.NIGERIAN ARMY (2018) LPELR – 44377(SC).
Hence, when particulars do not flow from the grounds of appeal it will be struck out together with the ground of appeal. Chief Tom Anyafulude in book ‘Manual of Appellate Proceedings and Brief Writing’ on page 416 stated the attributes of effective particulars. These attributes of particulars as provided by him are that they:
i. should be related to the ground and flow from it;
ii. should not be vague;
iii. must not be hypothetical and must relate to questions decided by the lower Court; and
iv. shall not be argumentative or narrative One way to answer this issue is to look at particulars of error formulated by the Appellant in conjunction with the attributes of particulars listed above to see if said particulars of error can be said to be incompetent? Another way to look at it is to check if parties to an appeal and the Court are misled by the particulars of a ground of appeal. At this juncture and to effectively answer the issue it is necessary to reproduce the ground of Appeal and its particulars of error:
“GROUND 1
The Learned trial judge erred in law when he entered judgment in the sum of N100,000,000 (One Hundred Million Naira) as general damages against the Appellant and in favour of the 2nd Respondent.
PARTICULARS OF ERROR
i. The claim for loss of business opportunity by the 2nd Respondent as contained in the paragraph 20 (f), (g) and (h) are claims in special damages which the law requires must be specifically pleaded and specially proven.
ii. The 2nd Respondent did not proffer any evidence in proof of the loss of business opportunity.
iii. The 2nd Respondent did not plead/place any particular(s) of loss of business opportunity before the trial Court.
iv. On the authorities of GARI V SEIRAFINA (NIG) LTD (2008) 2 NWLR (PT. 1070) 1 AND NMA V MARINE MANAGEMENT ASSOCIATES INC & ANOR (2008) LPELR-4583(CA) for loss of business opportunity however described, is within the claim for special damages” A careful reading of ground (1) reveals that the particulars of error are competent. The ground itself complains that the trial Court erred when it granted damages of “loss of business opportunity” which the Appellant alleges is legally in the category of special damages which requires proof. The particulars give an insight to the ground as such it is clear, in my view, that the ground is competent. Per MOHAMMED BABA IDRIS, J.C.A

RATIO

PLEADINGS: GROUNDS OF APPEAL.

it is understood that the grounds of appeal are the embodiment of the complaint against the decision of the lower Court and therefore should not be vague. The grounds are in essence the pillars on which the entire appeal stands on.BHOJSONS VS.DANIEL-KALIO (2006) 5 NWLE (PT. 973) 332. Furthermore, the notice and the grounds of appeal constitute the foundation of any appeal and as such they must be firm enough to hold the appeal. See DAVIES VS.GUILD OINE LTD (2004) 5 NWLR (PT. 865) 131.
Additionally, a ground of appeal as upheld by a plethora of cases must attack the decision of the trial Court to be competent. Any ground that does not attack the decision of the trial Court will therefore be incompetent and struck out. See MERCANTILE BANK OF NIGERIA PLC & ANOR VS.NWOBODO (2005) LPELR 1860 (SC); MANSON VS.HALLIBURTON ENERGY SERVICES LTD (2007) 2 NWLR (PT.1018) 211 and BAYERO VS.MAINASARA & SONS LTD (2006) LPELR – 7587.
The principle above was eloquently expressed by MSHELIA JCA in TEXACO (NIG) PLC VS. ILOKA & ANOR (2013) LPELR – 21187(CA), where it was held that:
“Grounds of Appeal are not formulated in nubibus. They must be in firma terra, namely arise from the judgment. In Saraki v. Kotoye (1992) NWLR (Pt.264) 156 at 23 paras F – G the Supreme Court per Karibi-Whyte, JSC had this to say: “It is a well settled proposition of law in respect of which there can hardly be a departure that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision.” See also Egba v. Alhaji Abubakar Alhaji & Ors. (1990) 1 NWLR (Pt.128) 546 at 590….”It is perhaps at this point imperative to reproduce ground 5 in order to ascertain if it stems from the decision of the lower Court. Ground 5 was formulated by the Appellant thus:
“GROUND 5
The learned trial judge erred in law when he held that the Appellant is vicariously liable for the action of the 7th Respondent.
PARTICULARS OF ERROR
i. There was no claim for vicarious liability by the 2nd Respondent before the lower Court against the Appellant.
ii. The finding of the lower Court that the Appellant is vicariously liable for the action of the 7th Respondent is founded in the law of torts
iii. The finding of the lower Court against the Appellant being founded in the Tort of vicarious liability is beyond the jurisdiction of the lower Court and amount to a nullity. Now, it is trite law that it is not every slip by a Court that raises an issue fit for appeal. In fact, the law is set that issue in an appeal should be a proposition of law or a fact so cogent, weighty and compelling that a decision in favour of a party to the appeal will enable him to win the case. However, in this case from the judgment above, it is fairly clear to see that the ground 5 was borne out of the decision of the lower Court. The issue of vicarious liability cannot be taken in isolation but it was in fact part of what led the Court to reach its decision. I am therefore of the view that ground five is competent as it is borne out of the decision of the lower Court. Per MOHAMMED BABA IDRIS, J.C.A

RATIO

PLEADINGS: COURT’S POWER TO AWARD DAMAGES.

It is indeed a trite principle of law that a trial Court has the power to award damages, however as it relates to this judgment it can be understood from the judgment of the trial Court above that they granted general damages contained in reliefs f, g and h. This is the only meaning that I give to the words of the trial judge reproduced above. I also agree with the arguments of the Appellants that the Court did not specifically say that it refused reliefs f, g and h. The trial judge also granted the same amount as sought by the 2nd Respondent as such one cannot give the words of the trial judge any other meaning. The trial judge did not grant the general damages suo motu as such I will assume the position that the trial judge did in fact grant reliefs f, g and h. As to the question of whether “loss of business” is special damages which must be specifically pleaded and proven, the Appellant relied heavily on the case of NMA VS. MARINE MANAGEMENT ASSOCIATES INC. & ANOR (2008) LPELR – 4583 (CA) where the Court of Appeal held that “loss of business” is within the claim of special damages. The 2nd Respondent on his own part argued that special damages are exact with mathematical precision while general damages flows from the wrong complained of.
In order to answer the question above there is a need to define certain words: loss, business and profit. The term loss was defined in UBA PLC VS. UZOCHUKWU (2017) LPELR – 42787 (CA) per Tur, JCA where he held that:
“A “loss” is defined in Black Law’s Dictionary (supra) at page 963 as “…1 An undesirable outcome of a risk; the disappearance or diminution of value, usually in an unexpected or relatively unpredictable way…”
The words business and profit were also defined by Tur, JCA in FCMB PLC VS. BENBOK LTD (2014) LPELR – 23505(CA) where he held that:
“Business” which is what the parties engaged into is defined by the learned authors of Black Law Dictionary, 9th edition, page 220 as, “A commercial enterprise carried on for profit; a particular occupation or employment liability engaged in for livelihood or gain…” Almost every person, corporation or an entity that is carrying on business intends to make profit. The excess of revenues over expenditure in a business transaction constitutes what is called “profit”. Rarely would a corporate entity, or an entity, or individual engage in a business without an intention to make profit.”Now looking at all these definitions it clear that loss of profit is indeed similar to loss of business and they are both special damages that requires particularisation. It is well settled that the award of damages by a trial Court can only be upset by an appellate Court if that Court feels that the trial Court acted on wrong principles of law or that the amount awarded by the trial Court is extremely high or low. However, in this case I believe that the award of general damages in relation to the item “loss of business” was done using a wrong principle of law. This as I have established above is because “loss of business” is a special damage which must be pleaded and proved. Per MOHAMMED BABA IDRIS, J.C.A

Before Our Lordships:

Abdu Aboki Justice of the Court of Appeal

Stephen Jonah Adah Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

FIRST BANK OF NIGERIA LIMITED (Formerly Known As First Bank Of Nigeria Plc) APPELANT(S)

And

MALLAM MADALLA GLOBAL CONCEPT LIMITED 2. ANNASAI NIGERIA LIMITED 3. ALHAJI ADO ADAMU 4. AHMADU ADAMU 5. MANASIK LIMITED 6. AUDU BABANGIDA ALHAJI 7. GAMBO MUSA 8. GAMANDI GLOBAL CONCEPT LIMITED RESPONDENT(S)

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By an Amended Writ of Summons dated 23rd March 2015 and filed on the same day, the Appellant as Plaintiff at the trial Court instituted an action against the Respondents who were the Defendants at the trial Court respectively and sought for the following reliefs against the Defendants jointly and severally:
1. The sum of N443,992,587.30 (Four Hundred and Forty-Three Million, Nine Hundred and Ninety-Two Thousand, Five Hundred and Eighty-Seven Naira, Thirty Kobo) as at 28th February, 2015 being outstanding balance of the indebtedness of the 1st Defendant by virtue of the letter of offer dated and 2nd June, 2014 guaranteed by the 3rd and 4th Defendants.
2. Interest on the said sum of N443,992,587.30 (Four Hundred and Forty-Three Million, Nine Hundred and Ninety-Two Thousand, Five Hundred and Eighty-Seven Naira, Thirty Kobo) at the rate of 17% per annum from the 28th February, 2015 till judgment and thereafter at the rate of 11% per annum till full liquidation of the entire debt.
3. A Declaration that the transfer/diversion to the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th Defendants’

account of the facility advanced to the 1st Defendant by the Plaintiff was wrongful and unlawful.
4. AN ORDER that the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th Defendants shall pay over to the 1st Defendant through its account number 2023315062 domiciled with the Plaintiff the following sums of all monies transferred/diverted to them:
a) The sum of N317,500,000.00(Three Hundred Million, Five Hundred Thousand Naira) transferred/diverted into the 2nd Defendant’s account number:2022775973 in three (3) tranches on the 25th July, 2014.
b) The sum of N32,000,000.00(Thirty-Two Million Naira) transferred/diverted into the 3rd Defendant’s account number 2019207896 in four (4) tranches on the 20th July, 2014;1st August, 2014; and 4th August,2014.
c) The sum of N24,000,000.00 (Twenty-Four Million Naira) transferred/diverted into the 5th Defendant’s account number 3078227744 on the 30th July, 2014.
d) The sum of N16,000,000.00 (Sixteen Million Naira) transferred/diverted into the 6th Defendant’s account number 3058668077 on the 30th July, 2014.
e) Monies totaling the sum of N43,700,000.00 (Forty-Three Million, Seven Hundred

Thousand Naira) transferred/diverted by the 2nd Defendant into the 8th Defendant’s account in two tranches on the 25th July, 2014.
f) Monies totaling the sum of N4,190,000.00 (Five Million, One Hundred and Ninety Thousand Naira) transferred/diverted by the 2nd Defendant into the 7th Defendant’s account into four (4) tranches on the 25th July, 2014 and 30th July, 2014.

On the other hand, the 2nd Defendant (now 2nd Respondent) counterclaimed against the Plaintiff (Appellant) as follows:
1. A Declaration that the unauthorized premature liquidation of the Counter Claimant’s N590,000,000.00 (Five Hundred and Ninety Million Naira) fixed deposit with reference No. 5064020008204 on the 23rd May, 2014 by the 1st Defendant to the Counter Claim (First Bank Ltd) is wrongful, illegal and a breach of contract between the Counter Claimant and the 1st defendant to the Counter Claim (First Bank Ltd) as well as a breach of the fiduciary duty of the 1st Defendant to the Counter-Claim to the Counter Claimant.
2. A DECLARATION that the various transactions mentioned in Paragraphs 5, 6, 7 and 10 above effected in the Counter Claimant’s

current account by the 1st Defendant to the Counter Claim (First Bank Ltd) through its manager, the 7th Defendant to the Counter Claim between 23rd May, 2014 and 30th July, 2014 and other charges on the Counter-Claimant’s said account were wrongful, illegal and amounted to a breach of the fixed deposit and current account contract between the Counter Claimant and the 1st Defendant to the Counter Claim (First Bank Ltd), as well as fiduciary duty of the 1st Defendant to the Counter Claim (First Bank Ltd) to the Claimant.
3. A DECLARATION approving the reinstatement of the Counter Claimants illegally liquidated fixed deposit, in which the amounts illegally withdrawn were repaid back and a new fixed deposit with Reference NO. 5064020008952 created with the same interest rate and tenor.
4. A DECLARATION that the refusal of the 1st Defendant to the Counter Claim (First Bank Ltd) to honour the request of the Counter Claimant to transfer the amount in fixed deposit account from the 1st defendant to the Counter Claim (First Bank Ltd) to Zenith Bank Plc amounted to a Breach of the contractual agreement between the 1st Defendant to the Counter Claim

(First Bank Ltd) and the Counter Claimant.
5. AN ORDER of Court unfreezing all the accounts of the Counter Claimant which order was granted by this Court based on concealed facts given by the 1st Defendant to the Counter Claim (First Bank Ltd).
6. The sum of N10,000,000 (Ten Million Naira) general damages for loss of business opportunity as a result of the refusal of the 1st Defendant to the Counter Claim (First Bank Ltd) to Honour the Counter Claimant’s request to transfer the amount in its fixed deposit account to Zenith Bank Plc.
7. The sum of N70,000,000.00 (Seventy Million Naira) as general damages for loss of goodwill, loss of business opportunity and stress caused the Counter Claimant by the 1st Defendant to the Counter Claim (First Bank Ltd) freezing of the Counter Claimant’s fixed and current account with the 1st Defendant to the Counter Claim from February 2015 to date.
8. The sum of N20,000,000.00 (Twenty Million Naira) as damages for loss of goodwill, loss of business opportunity and stress caused the Counter Claimant by the 1st Defendant to the Counter claim (First Bank Ltd) freezing of the defendants fixed and

current accounts in other banks in Nigeria Since February 2016.
9. Cost of this Suit.

Before going into the appeal, I will like to give a summary of the facts involved in this Appeal.

The Appellant as plaintiff at the trial Court claimed that the 1st Respondent who is its customer applied for credit facility to finance purchase of 4,400 metric tons of fertilizer for sale to farmers under the Federal Government Agriculture Growth Enhancement Scheme.

The Appellant claims that it approved and granted the 1st respondent’s request in the sum of N400,000,000.00 (Four Hundred Million Naira).

The Appellant further claims that the 7th Respondent being the Branch Manager of the Appellant at the time approved the disbursement of the facility to the 1st Respondent in contravention of the terms of the facility.

The Appellant also claims that at the expiration of the tenure of the facility (Six months), no tangible repayment was made by the 1st Respondent which made the Appellant to cause an inquiry of the transaction.

The Appellant claims that the inquiry revealed that the facility was not used for the purpose for which it was

granted rather monies totaling N433,067,000.00 (Four Hundred and Thirty-Three Million, Sixty-Seven Thousand) which formed the facility sum and part of the equity contribution were shared and fraudulently diverted by the 1st Respondent to the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th Respondents.

The Appellant also claimed that it wrote several letters of demand to the 1st Respondent to settle its debt but the demand letters did not yield any positive result hence the filing of this action at the trial Court.

The Parties opened their case and tendered documents marked as Exhibits A, A1, B – B4, C – C5, D – D4, E – E2 and F, G, H – H1, I, J, K – K4, L, M, N– N1, P – P5 and the case was adjourned to 20th December, 2016 for adoption of Final Written Addresses. Parties then filed and adopted their respective addresses.

After considering the evidence led by the parties, the Learned Trial Judge, Honourable Justice I. N. AUTA delivered Judgment in the Suit No- FCT/ABJ/L/CS/264/2015 on the 15th March, 2017 wherein the trial judge granted Judgment partly in favour of the Appellant.

Dissatisfied with part of

the Judgment of the trial Court, the Appellant filed a Notice of appeal dated 20th March, 2017 comprising of four grounds of appeal. The Appellant further amended the said Notice of Appeal.

The Amended Notice of Appeal was filed on the 4th of May, 2015.

The Parties in the appeal before this Court filed and exchanged their respective briefs of argument.

In the Appellant’s Amended brief of argument as settled by his counsel Emmanuel A. Oyebanji Esq. and dated 3rd July, 2018 and filed 9th July, 2018, the following issues for determination were distilled from the grounds of appeal as follows:
1. Whether the Trial Court was right to have awarded the sums of N10,000,000.00 (Ten Million Naira); N70,000,000.00 (Seventy Million Naira) and N20,000,000.00 (Twenty Million Naira) as damages for loss of business opportunity when the 2nd Respondent failed to specifically prove the business opportunity it lost which was occasioned by the Appellant. (Distilled from Ground 1 of Amended Notice of Appeal).
2. Whether or not the Trial Court was right when it made a declaration that the Appellant made unauthorized and premature liquidation of the 2nd

Respondent’s fixed deposit account and thereby breached fiduciary duty. (Distilled from Grounds 2 and 3 of the Amended Notice of Appeal).
3. Whether or not the Trial Court exceeded its jurisdiction when it held that the Appellant was vicariously liable for the crime committed by the 7th Respondent and thereby awarded N100,000,000 (One Hundred Million Naira) damages against the Appellant. (Distilled from Ground 5 of the Amended Notice of Appeal).
4. Whether the Trial Court was right when it held that there was no sufficient evidence to show that the 2nd Respondent benefitted from any diverted funds. (Distilled from Grounds 4 and 6 of the Amended Notice of Appeal).

On Issue One, the Appellant’s Counsel argued that the 2nd Respondent sought nine (9) reliefs in its Counter-Claim which the Appellant urged the Trial Court to dismiss the claim for damages for loss of business opportunity because it is a claim in special damages which must be specifically pleaded and proven and so the 2nd Respondent was not entitled to the damages he asked for. The Appellant’s Counsel argued that the Trial Court ignored the Appellant’s

submission and awarded the sum of N100,000,000.00 (One Hundred Million Naira) as damages without stating the basis of the said award. Counsel argued that the law is clear that a claim for damages for loss of business opportunity is a claim in special damages and it must be specifically pleaded and particularized and specially proven. On this point, counsel referred to the case of NMA VS.MARINE MANAGEMENT ASSOCIATES INC & ANOR (2008) LPELR – 4583 (CA).

On Issue Two, the Appellant’s Counsel argued that the Trial Court granted reliefs (a) and (b) endorsed on the 2nd Respondent’s Counter Claim without considering the case of the Appellant and the abundant evidence before it which showed that the Appellant could not have breached the fiduciary duty when withdrawals from the 2nd Respondent’s account were not made without authority.

The Appellant’s Counsel also argued that the Trial Court ought not to have granted reliefs (a) and (b) or any other relief on the counterclaim given the testimony of the 7th Respondent. Counsel further argued that the Trial Court ought to have been put on inquiry as to why funds transfer

forms/instructions would be pre-signed and handed over to the 7th Respondent by the 2nd Respondent. On this point, counsel cited the case of METALIMPEX VS. A.G. LEVENTIS & CO. LIMITED (1976) 10 NSCC 76 AT 84.

On Issue Three, the Appellant’s Counsel argued that there was no claim for vicarious liability by the 2nd Respondent before the trial Court against the Appellant yet the Trial Court held that the Appellant is vicariously liable for the action of their staff. On this point, he cited the case of NIDOCCO LIMITED VS.MRS I.A. GBAJABIAMILA (2013) LPELR – 20899(SC).

On Issue Four, the Appellant’s Counsel argued that the Judgment of the Trial Court given in page 674 of the Record of Appeal was wrong as same was reached without giving due consideration to the weighty evidence of PW1.

The Appellant’s Counsel further argued that the evidence from PW1 and Exhibits E and E1 are forceful enough that if the Trial Court had considered them, he would have reached a different but rightful decision that the 2nd Respondent benefitted from the facility diversion as claimed by the Appellant. On this point, counsel cited the case of R VS.ABUAH (1961) ALL NLR 635 AT 640.

In conclusion, the Appellant’s Counsel argued that the Trial Court failed to consider the fact that Exhibit H and H1 contains entries which corroborates the evidence of PW1 that the 2nd Respondent benefitted from the diversion of the facility granted to the 1st Respondent.

The 1st, 3rd, 4th, 5th, 6th, 7th and 8th Respondents filed a Joint Brief of Argument settled by its Counsel Jonathan Onye Esq. dated 6th August 2018 and filed on the 8th of August, 2018. In the brief Counsel to these set of Respondents raised three issues for determination as follows:
1. Whether the Trial Court was right to have awarded the sums of N10,000,000.00, N70,000,000.00 and N20,000,000.00 as damages for loss of business opportunity when the 2nd Respondent failed to specifically prove the business opportunity it lost which was occasioned by the Appellant.
2. Whether or not the Trial Court was right when it made a declaration that the Appellant made unauthorized and premature liquidation of the 2nd Respondent’s fixed deposit account and thereby breached fiduciary duty.
3. Whether or not the Trial Court exceeded

its jurisdiction when it held that the Appellant was Vicariously liable from the crime committed by the 7th Respondent and thereby awarded N100,000,000.00 damages against the Appellant.
4. Whether the trial Court was right when it held that there was no sufficient evidence to show that the 2nd Respondent benefitted from any diverted funds.

On Issue One, the 1st, 3rd, 4th, 5th, 6th, 7th and 8th Respondent’s Counsel argued that the Appellant’s argument on this issue is an academic exercise which this Court is not allowed to delve into.

Counsel further argued that the Appellant misled the Trial Court on the 23rd March, 2015 into granting a Mareva injunction which froze the various accounts of the 2nd, 5th, 6th,7th and 8th Respondents when they were never parties to the loan agreement and transaction between the Appellant and the 1st Respondent and that they have been deprived access to their accounts with the Appellants as a result of a loan which they did not guarantee. Counsel also submitted that the general damages awarded by the Trial Court cannot be faulted by the Appellant who did not appeal against the findings of the Court that

gave rise to the general damages.

Finally, on this Issue, the 1st, 3rd, 4th, 5th, 6th, 7th and 8th Respondent’s Counsel argued that the loss of business opportunity was never the basis of the general damages but the wrong and breaches stated in the counterclaim.

On issue Two, the 1st, 3rd, 4th, 5th, 6th, 7th and 8th Respondents Counsel argued that a pre-signed transfer form on its own without intention or knowledge of transfer or actual consent to transfer fund by an account holder does not qualify as a bill of exchange. Counsel further submitted that the testimonies of D1 and DW2 clearly shows that the 2nd Respondent was not aware of the transfers carried on its account by the Appellant through its branch manager which was for the interest of the Appellant. Thus the opinion of the Trial Court that the 7th Respondent be charged for fraud was an obiter dictum and does not form the reason or basis of the decision of the Trial Court. On this point, counsel cited the case of OLEKANDR VS. LONESTAR DRILLING CO. LTD (2015) 62 NSCQR (PT1) 273 AT 304.

On Issue Three, the 1st, 3rd, 4th, 5th, 6th, 7th and 8th Respondent’s Counsel argued that the

Issue Three argued by the Appellant is an academic exercise. There is no pronouncement of law that the 7th Respondent committed any crime. Therefore, the Issue Three is liable to be struck out.

On Issue Four, the 1st, 3rd, 4th, 5th, 6th, 7th and 8th Respondent’s Counsel argued that the Appellant’s own witness, PW1, exonerated the 7th Respondent from any liability and in fact shows no credible evidence to support the Appellants claim. Counsel further argued that the effect of the evidence of PW1 is that he does not know who approved the disbursement of the facility to the 1st Respondent and so the Appellant’s claim that the 7th Respondent disbursed the loan to the 1st Respondent or diverted the loan is not reliable having regard to the piece of evidence. On this point, Counsel cited the case of AGBI VS.OGBEH (2006) ALL FWLR (PT. 329).

In conclusion, counsel urged this Court to dismiss this Appeal.

The 2nd Respondent on his part, filed a Notice of Preliminary Objection on the 17th of August, 2018 which was argued in the brief of argument filed on the 17th August, 2018 and settled by his Counsel Mustapha S. Ibrahim.

The grounds upon which the

said Notice of Preliminary Objection is being brought are as follows:
a. The Appellant filed an Amended Notice of Appeal containing six grounds of Appeal.
b. Ground 1 of the Amended Notice of Appeal purports to complain about the Trial Court’s award of N100,000,000.00 as general damages.
c. The particulars of the said Ground are complaints on alleged claims in special damages.
d. The Particulars do not therefore support the ground of appeal and as such the ground is incompetent.
e. The said ground one is not an omnibus ground that does not require particulars.
f. Issue One which was formulated from the incompetent Ground one is also incompetent.
g. The entirety of the said issue complaints about the award of what the Appellant erroneously refers to as special damage, which is not the basis of ground one of the Amended Notice of Appeal.
h. Ground 5 of the Amended of Appeal purports to complain of the Trial Court decision on the doctrine of vicarious liability in the realm of Torts.
i. At no time did the Trial Court render a decision on vicarious liability in the realm of the law of torts.
j. Issue Three

was formulated from the said ground five of the amended Notice of Appeal.
k. Ground Five having complained against a decision not delivered by the Trial Court is incompetent cum the issue three formulated therefrom.
l. Ground 1 and 5 therefore ought to be struck out as wells as issues 1 and 3 respectively formulated from the incompetent grounds.

The 2nd Respondent’s Counsel argued that the first ground of the preliminary objection is that Ground One of the Amended Notice of Appeal is incompetent on the basis that same is not supported by any particulars. Counsel further argued that the said ground complains about the award of general damages of N100,000,000.00(One Hundred Million Naira only) but the particulars which are meant to support the grounds tells a different story.

The 2nd Respondent’s Counsel argued that the 2nd ground of the preliminary objection borders on the incompetence of ground Five (5) of the amended Notice of Appeal which does not stem from the decision of the trial Court and ought to be struck together with the issues formulated therefrom.

In conclusion of the argument on the Preliminary Objection, the

2nd Respondent’s Counsel urged this Court to strike out Grounds One and Five of the Amended Notice of Appeal for being incompetent and also discountenance Issues One and Five formulated therefrom.

The 2nd Respondent’s Counsel in the 2nd Respondent’s Brief of Argument raised four Issues for determination as follows:
1. Whether the Trial judge was right in law when he entered judgment in the sum of N100,000,000.00(One Hundred Million Naira only) as general damages against the Appellant in favour of the 2nd Respondent. (Distilled from Ground One).
2. Whether or not the Trial Court was right when it made a declaration that the Appellant made unauthorized and premature liquidation of the 2nd Respondent’s fixed deposit account and thereby breached its fiduciary duty to the 2nd Respondent. (Distilled from Grounds 2 and 3).
3. Whether the Trial Court in granting the reliefs sought by the 2nd Respondent held the Appellant vicariously liable in torts and therefore exceeded its jurisdiction. (Distilled from Ground 5)
4. Whether the Trial Court was right when it held that there was no sufficient evidence to show that the

2nd Respondent benefitted from any diverted funds. (Distilled from Grounds 4 and 6).

On Issue One, the 2nd Respondent’s Counsel argued that the claim for general damages on account of stress, goodwill and loss of business opportunity can be found under paragraph 20(f), (g) and(h) of the Counter Claim and the Court having not entered judgment in this regard, any argument on same cannot be an appeal against the decision of the Trial Court and as such is incompetent. The 2nd Respondent’s Counsel also argued that the law is well settled that an Appellate Court will ordinary not interfere in the grant of General Damages which lies at the foot of a trial unless in exceptional circumstances. On this point, counsel cited the case of IGHRERINIOVO VS. S.C.C. (NIG) LIMITED (2013) 10 NWLR (PT.1361) 138 AT 154 PARAS D – F.

The 2nd Respondent’s Counsel argued that the reliefs sought by the 2nd Respondent is in the realm of general damages which the Appellant had no problem with it but picked loss of business opportunity and dubbed same as special damages. Counsel further argued and submitted that the loss of business opportunity is in the

same class as loss of goodwill.

On Issue Two, the 2nd Respondent’s Counsel argued that there was no piece of evidence adduced during trial to show that the 2nd Respondent authorized the closure of its fixed deposit, the disablement of its alert, the transfer of monies out of its fixed account and the reopening of a new fixed deposit. He further argued that the 7th Respondent consistently and continually admitted to the unlawful interference with the 2nd Respondent’s account which he said he did, not only on behalf of the Appellant but with the Knowledge of his superior in the Appellant.

On Issue Three, the 2nd Respondent’s Counsel argued that there was a deliberate attempt by the Appellant to misrepresent the proceeding and judgment of the Court. Counsel submitted that a calm reading of the decision of the Trial Court shows that it never determined the suit on the doctrine of vicarious liability in the law of torts and that the Appellant’s attempt to mislead the Court is condemnable.

On Issue Four, the 2nd Respondent’s Counsel argued that if there is anyone who should complain of the Trial Court’s refusal

that the money sent to the 2nd Respondent’s deposit account was product of illegality and that same be returned, it ought to be the 1st Respondent who purportedly transferred same. Counsel also submitted that the testimony of the 7th Respondent clearly revealed that the 2nd Respondent did not benefit from any diverted funds.

In response to the 1st, 3rd– 8th Respondents’ Brief of Argument, the Appellant filed a Reply Brief of Argument on the 7th of January, 2019 settled by his Counsel, Emmanuel A. Oyebanji.

The 1st, 3rd – 8th Respondents’ Counsel argued that bank practice is not one of the things the Court can take judicial notice of. On this point, counsel referred the Court to Section 122(2) of the Evidence Act, 2011. The 1st, 3rd – 8th Respondents’ Counsel argued that the jurisdiction of the Court cannot be conferred by pleadings but statute creating the Court. Counsel submitted that assuming the pleadings before the Court raised the point of vicarious liability over which the Trial Court has no jurisdiction, the Trial Court is not under compulsion to decide the point which is clearly not within its jurisdiction.

In conclusion, the Appellant submitted that the 1st and 3rd– 8th Respondents’ arguments in their brief of Argument are baseless, therefore urged this Court to allow the Appeal.

In Response to the 2nd Respondent’s Brief of Argument, the 2nd Respondent’s Counsel argued that the award of N100,000,000.00 damages made by the Trial Court was in error as it was not proven. He further argued that loss of business opportunity is a claim in special damages and the 2nd Respondent having failed to prove same is not entitled to it. The Appellant’s Counsel also argued that the learned Trial Judge was wrong in awarding and granting reliefs (f), (h), (i) of the 2nd Respondent’s Counter Claim for loss of business opportunity which are claims in special damages despite the fact that the 2nd Respondent failed to satisfy the requirement of the law to specifically plead and prove.

PRELIMINARY OBJECTION
The 2nd Respondent filed a preliminary objection dated and filed on the 17th August, 2018 which contains two issues. These issues are reproduced hereunder thus:
1. That ground 1 of the Amended Notice of

Appeal is incompetent on the basis that it is not supported by any particulars.
2. That ground 5 of the Amended Notice of Appeal is incompetent on the basis that it does not stem from the decision of the trial Court.

On the first issue the 2nd Respondent’s contention was that ground one which complains about the award of general damages of N100,000 (One hundred million Naira only) has particulars that do not complain of the damages. While the Appellant maintained that the law is clear that particulars are required to highlight the grouse of the Appellant and provide further details with regards to the grounds of appeal.

Particulars of error are the argumentative details of a ground of appeal which give an insight into the nature of the ground of appeal. Particulars are therefore the real compliant of the Appellant against the judgment appealed against. It is thus trite that the particulars should not be independent complaints from the grounds of appeal as they should be auxiliary to it. See DIAMOND BANK LTD VS. PARTNERSHIP INVESTMENT COMPANY LTD. & ANOR (2009) LPELR – 939 (SC). This means that particulars are intimately related to

to the ground of appeal and not divorced from them. See also NYAKO VS. ADAMAWA STATE HOUSE OF ASSEMBLY & ORS (2016) LPELR – 41822(SC) and AWUSA VS.NIGERIAN ARMY (2018) LPELR – 44377(SC).
Hence, when particulars do not flow from the grounds of appeal it will be struck out together with the ground of appeal. Chief Tom Anyafulude in book ‘Manual of Appellate Proceedings and Brief Writing’ on page 416 stated the attributes of effective particulars. These attributes of particulars as provided by him are that they:
i. should be related to the ground and flow from it;
ii. should not be vague;
iii. must not be hypothetical and must relate to questions decided by the lower Court; and
iv. shall not be argumentative or narrative.

One way to answer this issue is to look at particulars of error formulated by the Appellant in conjunction with the attributes of particulars listed above to see if said particulars of error can be said to be incompetent? Another way to look at it is to check if parties to an appeal and the Court are misled by the particulars of a ground of appeal. At this juncture and to effectively

answer the issue it is necessary to reproduce the ground of Appeal and its particulars of error:
“GROUND 1
The Learned trial judge erred in law when he entered judgment in the sum of N100,000,000 (One Hundred Million Naira) as general damages against the Appellant and in favour of the 2nd Respondent.
PARTICULARS OF ERROR
i. The claim for loss of business opportunity by the 2nd Respondent as contained in the paragraph 20 (f), (g) and (h) are claims in special damages which the law requires must be specifically pleaded and specially proven.
ii. The 2nd Respondent did not proffer any evidence in proof of the loss of business opportunity.
iii. The 2nd Respondent did not plead/place any particular(s) of loss of business opportunity before the trial Court.
iv. On the authorities of GARI V SEIRAFINA (NIG) LTD (2008) 2 NWLR (PT. 1070) 1 AND NMA V MARINE MANAGEMENT ASSOCIATES INC & ANOR (2008) LPELR-4583(CA) for loss of business opportunity however described, is within the claim for special damages”

A careful reading of ground (1) reveals that the particulars of error are competent. The ground itself complains

that the trial Court erred when it granted damages of “loss of business opportunity” which the Appellant alleges is legally in the category of special damages which requires proof. The particulars give an insight to the ground as such it is clear, in my view, that the ground is competent. I resolve this issue in favour of the Appellant.

ISSUE TWO
The second issue relates to ground 5 not stemming from the decision of the trial Court as such is incompetent. Order 7 Rule 3 of the Court of Appeal Rules 2016 sets out the rules for notice and grounds of civil appeal and states that:
“any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.”
From the above, it is understood that the grounds of appeal are the embodiment of the complaint against the decision of the lower Court and therefore should not be vague. The

grounds are in essence the pillars on which the entire appeal stands on.BHOJSONS VS.DANIEL-KALIO (2006) 5 NWLE (PT. 973) 332. Furthermore, the notice and the grounds of appeal constitute the foundation of any appeal and as such they must be firm enough to hold the appeal. See DAVIES VS.GUILD OINE LTD (2004) 5 NWLR (PT. 865) 131.
Additionally, a ground of appeal as upheld by a plethora of cases must attack the decision of the trial Court to be competent. Any ground that does not attack the decision of the trial Court will therefore be incompetent and struck out. See MERCANTILE BANK OF NIGERIA PLC & ANOR VS.NWOBODO (2005) LPELR 1860 (SC); MANSON VS.HALLIBURTON ENERGY SERVICES LTD (2007) 2 NWLR (PT.1018) 211 and BAYERO VS.MAINASARA & SONS LTD (2006) LPELR – 7587.
The principle above was eloquently expressed by MSHELIA JCA in TEXACO (NIG) PLC VS. ILOKA & ANOR (2013) LPELR – 21187(CA), where it was held that:
“Grounds of Appeal are not formulated in nubibus. They must be in firma terra, namely arise from the judgment. In Saraki v. Kotoye (1992) NWLR (Pt.264) 156 at 23 paras F – G the Supreme Court per Karibi-Whyte, JSC

had this to say: “It is a well settled proposition of law in respect of which there can hardly be a departure that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision.” See also Egba v. Alhaji Abubakar Alhaji & Ors. (1990) 1 NWLR (Pt.128) 546 at 590….”

It is perhaps at this point imperative to reproduce ground 5 in order to ascertain if it stems from the decision of the lower Court. Ground 5 was formulated by the Appellant thus:
“GROUND 5
The learned trial judge erred in law when he held that the Appellant is vicariously liable for the action of the 7th Respondent.
PARTICULARS OF ERROR
i. There was no claim for vicarious liability by the 2nd Respondent before the lower Court against the Appellant.
ii. The finding of the lower Court that the Appellant is vicariously liable for the action of the 7th Respondent is founded in the law of torts
iii. The finding of the lower Court against the Appellant being founded in the Tort of vicarious liability is beyond the jurisdiction of the lower Court and amount to a nullity.

The trial judge having held that the 7th Respondent be charged for fraud should not have held the Appellant responsible for the crime committed by the 7th Respondent.
v. The award of N100,000,000.00 damages against the Appellant was premised on the holding that the Appellant is vicariously liable for the action of the 7th Respondent.”The learned trial judge’s precise words contained in pages 676 – 677 are as follows:
“It is also not in contention that the account was liquidated on 27/05/14, I think the misunderstanding is whether there was an instruction to liquidate the fixed deposit or not. The counter-claimant argued that they did not give any instruction, the 7th Defendant also admitted that he dealt with the accounts of the counter-claimant without their consent. Having considered all the arguments, the counter claimant has successfully established that they did not give any instruction. The burden of proof at that stage shifts to the Defendant to show evidence that the counter-claimant indeed gave them instruction. I cannot see anywhere they tendered any evidence of instruction form the counter-claimant to liquidate the

fixed deposit. I believe the account of counter claimant was liquidated without his consent and monies transferred from his account. The 7th Defendant admitted that he used his discretion to transfer the money. The Defendant to the counter claim is the legal custodian of the money of the counter-claimant, and the 7th defendant was their staff when the transaction took place. They cannot claim ignorance of the transaction; the bank is vicariously liable for the actions of their staff.”

Now, it is trite law that it is not every slip by a Court that raises an issue fit for appeal. In fact, the law is set that issue in an appeal should be a proposition of law or a fact so cogent, weighty and compelling that a decision in favour of a party to the appeal will enable him to win the case. However, in this case from the judgment above, it is fairly clear to see that the ground 5 was borne out of the decision of the lower Court. The issue of vicarious liability cannot be taken in isolation but it was in fact part of what led the Court to reach its decision. I am therefore of the view that ground five is competent as it is borne out of the decision of the

lower Court. I resolve this issue in favour of the Appellant.

Having established that both issues in this preliminary objection lack merit, I accordingly dismiss this preliminary objection.

MAIN JUDGMENT
For the determination of this appeal, I shall adopt the issue formulated by the Appellant. The issues are reproduced hereunder for ease of reference:
1. Whether the Trial Court was right to have awarded the sums of N10,000,000.00 (Ten Million Naira); N70,000,000.00 (Seventy Million Naira) and N20,000,000.00 (Twenty Million Naira) as damages for loss of business opportunity when the 2nd Respondent failed to specifically prove the business opportunity it lost which was occasioned by the Appellant. (Distilled from Ground 1 of Amended Notice of Appeal)
2. Whether or not the Trial Court was right when it made a declaration that the Appellant made unauthorized and premature liquidation of the 2nd Respondent’s fixed deposit account and thereby breached fiduciary duty. (Distilled from Grounds 2 and 3 of the Amended Notice of Appeal)
3. Whether or not the Trial Court exceeded its jurisdiction when it held that the Appellant was

vicariously liable for the crime committed by the 7th Respondent and thereby awarded N100,000,000 (One Hundred Million Naira) damages against the Appellant. (Distilled from Ground 5 of the Amended Notice of Appeal).
4. Whether the Trial Court was right when it held that there was no sufficient evidence to show that the 2nd Respondent benefitted from any diverted funds. (Distilled from Grounds 4 and 6 of the Amended Notice of Appeal).

ISSUE ONE
After reviewing the briefs of arguments of the parties to this appeal in relation to this issue there are two questions to be answered. The first question is whether the trial judge did not enter judgment for reliefs f, g and h but used its discretion to grant 100,000,000 as general damages? The second question is whether “loss of business” is qualified as a special damage for which the law stipulates that it must be pleaded and proved?

Starting with the first question the 2nd Respondent argued that the Court did not pronounce on the reliefs contained in paragraphs f, g and h as such any arguments on same cannot be appealed against. They also argued that the trial Court had the power to

award damages. The Appellant on the other hand maintained that the trial judge never mentioned that the reliefs contained were not granted and that he granted the exact amount sought for the 2nd Respondent. I am inclined to agree with the Appellant. The exact words of the trial judge were:
“The Court hereby enter judgment in favour of the counter claimant as per his claim under paragraph 20 of the counter claim. a, b, c, d, e and the sum of N100,000,000 as general damages.”

motu as such I will assume the position that the trial judge did in fact grant reliefs f, g and h.

As to the question of whether “loss of business” is special damages which must be specifically pleaded and proven, the Appellant relied heavily on the case of NMA VS. MARINE MANAGEMENT ASSOCIATES INC. & ANOR (2008) LPELR – 4583 (CA) where the Court of Appeal held that “loss of business” is within the claim of special damages. The 2nd Respondent on his own part argued that special damages are exact with mathematical precision while general damages flows from the wrong complained of.
In order to answer the question above there is a need to define certain words: loss, business and profit. The term loss was defined in UBA PLC VS. UZOCHUKWU (2017) LPELR – 42787 (CA) per Tur, JCA where he held that:
“A “loss” is defined in Black Law’s Dictionary (supra) at page 963 as “…1 An undesirable outcome of a risk; the disappearance or diminution of value, usually in an unexpected or relatively unpredictable way…”
The words business and profit were also defined by

Tur, JCA in FCMB PLC VS. BENBOK LTD (2014) LPELR – 23505(CA) where he held that:
“Business” which is what the parties engaged into is defined by the learned authors of Black Law Dictionary, 9th edition, page 220 as, “A commercial enterprise carried on for profit; a particular occupation or employment liability engaged in for livelihood or gain…” Almost every person, corporation or an entity that is carrying on business intends to make profit. The excess of revenues over expenditure in a business transaction constitutes what is called “profit”. Rarely would a corporate entity, or an entity, or individual engage in a business without an intention to make profit.”Now looking at all these definitions it clear that loss of profit is indeed similar to loss of business and they are both special damages that requires particularisation.

It is well settled that the award of damages by a trial Court can only be upset by an appellate Court if that Court feels that the trial Court acted on wrong principles of law or that the amount awarded by the trial Court is extremely high or low. However, in this case I

believe that the award of general damages in relation to the item “loss of business” was done using a wrong principle of law. This as I have established above is because “loss of business” is a special damage which must be pleaded and proved. As a consequence of my decision this Court will reduce the damages awarded. The award of general damages is hereby reduced to 10,000,000.

I resolve this issue in favour of the Appellant against the Respondents.

ISSUE TWO
This issue relates to whether the trial Court was right when it made a declaration that the Appellant made unauthorized and premature liquidation of the 2nd Respondent’s fixed deposit account and thereby breached fiduciary duty. As it relates to this issue I have looked at the myriad of arguments put forth by the Appellant which to my mind did little in answering the question posed in this issue. I had expected the Appellant to answer a simple query: whether their liquidation of the 2nd Respondent’s fix deposit account was authorized? The Appellant fell short in answering the above mentioned query.

The trial judge in his decision held thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“I have considered the arguments of both sides, it is instructive to note that both parties are in agreement that there existed a fixed deposit account of the counter-claimant domiciled with the defendant.
It is also not in contention that the account was liquidated on 20/05/14, I think their misunderstanding is whether there was an instruction to liquidate the fixed deposit or not. The counter-claimant argued that they did not give any instruction, the 7th Defendant also admitted that he dealt with the account of the counter-claimant without their consent. Having considered all the argument, the counter-claimant has successfully established that they did not give any instruction. The burden of proof at this stage shifts to the Defendant to show evidence that the counter-claimant indeed gave them instruction. I cannot see anywhere they tendered any evidence of instruction from the counter-claimant to liquidate the fixed deposit. I believe the account of the counter-claimant was liquidated without his consent and monies transferred from the account…”

I cannot help but agree with the trial judge as it relates to the liquidation of

the 2nd Respondent’s fixed deposit account. Indeed there is no proof that the 2nd Respondent gave authorization for the premature liquidation of the account. More importantly, the unchallenged evidence of PW1 and 7th defendant all show that the 2nd defendant did not give any authorization to liquidate the account. Now, as it relates to Exhibit F which the Appellant held was proof that the 7th Respondent had authority to deal with the accounts as he saw fit, I agree with the 2nd Respondent that the withdrawals carried a single number which is not the practice of any bank including the Appellant. More importantly, the withdrawals contained in Exhibit F do not answer the unlawful liquidation of the 2nd Respondent’s account. Additionally, as it relates to the trial Court relying on the evidence of the 7th Respondent even though held that he should be charged with fraud, the truth of the matter is that the 7th Respondent did not contradict himself but was consistent in his testimony and the fraud charge retained to his acts in tampering with the 2nd Respondent’s account illegally. Finally, with regard to the tampering of the account even before

the loan facility was applied for or even granted, again I will state that the evidence of the 7th defendant and the PW1 all show that the account was tampered with unlawfully whatever the reason for the tampering may have been.

I resolve this issue in favour of the 2nd Respondent against the Appellant.

ISSUE THREE
This issue relates to whether the Trial Court exceeded its jurisdiction when it held that the Appellant was vicariously liable for the crime committed by the 7th Respondent and thereby awarded N100,000,000. The arguments of the Appellant as it relates to this issue are that; the 2nd Respondent made no claim for vicarious liability in the lower Court and that vicarious liability belongs to the realm of torts which the trial Court has no jurisdiction over by virtue of the Constitution of the Federal Republic of Nigeria.

The Appellant is right as it relates to his two arguments above that the 2nd Respondent made no claim for vicarious liability in the lower Court and that vicarious liability belongs to the realm of torts which the trial Court has no jurisdiction. However, a close reading of the reliefs sought by the 2nd

Respondent which lead to the award of 100,000,000.00 do not relate to the 7th Respondent’s illegal, unlawful and unauthorised infractions on the 2nd Respondent’s fixed deposit account. Relief f, g and h were couched thus:
“f. The sum of N10,000,000 (Ten Million Naira) as general damages for loss of business opportunity as a result of the refusal of the 1st Defendant to the Counter Claimant (First Bank Ltd) to honour the Counter Claimant’s request to transfer the amount in its fixed deposit account with Zenith Bank PLC.
g. The sum of N70,000,000 (Seventy Million Naira) as general damages for loss of goodwill, loss of business opportunity and stress caused the Counter Claimant by the 1st Defendant to the Counter Claimant (First Bank Ltd) freezing of the Counter claimant’s fixed and current account with the 1st Defendant to the Counter Claimant from February 2015 to date.
h. The sum of N20,000,000 (Ten Million Naira) as general damages for loss of goodwill, loss of business opportunity and stress caused the Counter Claimant by the 1st Defendant to the Counter Claimant (First Bank Ltd) freezing of the Counter

claimant’s fixed and current account with the 1st Defendant to the Counter Claimant from February 2016.”

From the reliefs sought by the 2nd Respondent reproduced above, it clear that the trial judge’s decision to grant these reliefs stems from the bank’s own actions when it refused to transfer the 2nd Respondent’s money to a Zenith Bank account and for freezing the accounts of the 2nd Respondent. A reading of the part of the judgment which relates to this issue contained in pages 676 – 677 which has been produced above in the earlier part of this judgment shows that though vicarious liability was one of the reasons for the reasons which lead to the decision of the Court, the trial Court also granted reliefs which had to do with the actions of the Bank its self and not the actions of the 7th defendant who was the bank’s staff.

I resolve this issue in favour of the Respondents against the Appellant.

ISSUE FOUR
Whether the Trial Court was right when it held that there was no sufficient evidence to show that the 2nd Respondent benefitted from any diverted funds.

In deciding this issue, this

Court is at liberty to look at the Record before it.

In page 511 – 512 of the Record of Appeal, during the Cross-examination of witness by the 2nd Defendant, the witness stated thus:
“…The credit was given to the 1st Defendant by the Plaintiff. The 2nd Defendant did not sign exhibit B, the officer letter. It was never a signatory to any of these documents.”
“… The 7th Defendant said that the disbursement was made without the knowledge of the 2nd Defendant. I am not aware of any letter by the MD of the 2nd Defendant about transaction on his accounts. Money in a fixed deposit cannot be transaction with anyhow. I cannot recall if there is any letter from the 2nd Defendant that his fixed deposit account will be liquidated or transferred. The 2nd Defendant operates a current account with the Plaintiff and fixed deposit account.”

In page 513 and 514 of the Record of Appeal, during cross examination of the 7th Respondent, he admitted as follows:
“… I admitted that I did certain transaction without the consent of the 2nd Defendant….”

He further stated that:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“… The second Defendant was not aware of the transaction on his account. The 2nd Defendant wrote a letter to the Plaintiff complaining about the illegal activities on his account. The 2nd Defendant wrote a letter to the Plaintiff complaining about the illegal activities on his account….”

Also in page 516 of the Record of Appeal, the witness stated that:
“… I did not obtain the consent of the 2nd Defendant, before I transferred money from his account….”

In page 518 of the Records of Appeal the witness further stated thus:
“… I regretted transferring the monies from the 2nd Defendant account without their permission….”

From the above pieces of evidence at the Trial Court, it is clear that the Transaction on the 2nd Defendants Account was not only done without his consent but that he was also unaware of the said transactions in his account but when he discovered, he wrote a letter to the plaintiff complaining about the illegal activities on his account. The said Complaint is vide Exhibit M. How then can the 2nd Respondent be said to have benefitted from the

diverted funds?

The law is trite that evaluation of evidence is the Primary Responsibility of the Court particularly the Trial Court which watched the witness in the witness box.

I have carefully considered the judgment of the Learned Trial Court particularly from page 674 – 675 of the Record of Appeal after he resolved the issue where he held inter alia, that:
“Based on the evidence before the Court especially the testimony of the 7th Defendant and Exhibit H and H1 which is the statements of account of the 1st and 2nd Defendant, I believe the 2nd Defendant did not benefit from the illegal diversion alleged by the Plaintiff. In a loan agreement measures are put in place to take care of situations such as this, that is why there are guarantors which is 3rd and 4th Defendants. The 7th Defendant also admitted dealing with the account without consent.”

The Trial Court further held:
“In conclusion after consideration of all the evidence and arguments before the Court, there is no sufficient evidence that the 2nd Defendant benefitted from any diverted funds. The 1st Defendant has not denied indebtedness and should be

held liable to pay the loan. The 2nd Defendant is not a party to the contract and cannot be compelled to be answerable for any default on the loan, that is why there is provision for guarantors. The Defendant should be charged for fraud.”

It is also trite that where the Trial Court evaluated the evidence and justifiably appraises the facts, it is not the business of the Appellate Court to substitute own views for the views of the Trial Court. See the cases of SHA VS. KWAN (2000) 5 SC 178; OJOKOLOBO VS.ALAMU (1998) 9 NWLR (PT. 565) 226 and FAGBENRO VS.AROBADI (2006) 7 NWLR (PT. 978) 174.

I therefore agree in totality with the evaluation of the evidence of the Trial Court on this point and further hold that the Trial Court was right when it held that there was no sufficient evidence to show that the 2nd Respondent benefitted from any diverted funds. This issue is thus resolved in favour of the 2nd Respondent.

This Appeal is partly upheld. The award of general damages granted by the trial Court in the sum of N100,000,000 is set aside. I hereby award the sum of N10,000,000 to the 2nd Respondent as general damages. I, however, uphold all the

other orders granted in favour of the 2nd Respondent by the trial Court.

There is no further orders as to cost.

ABDU ABOKI, .J.C.A.: I had the privilege of reading before now, a draft of the lead judgment just delivered by my Learned brother MOHAMMED BABA IDRIS, J.C.A. His Lordship has prudently and diligently dealt with the issues that arose for determination.

I agree with his reasoning and conclusion that the appeal is unmeritorious and ought to be dismissed, except for the issue of the award of special damages, which I also find to have been awarded without recourse to the elementary principle of law that special damages must be pleaded with particularization and proved. These findings and conclusions flowed from the evidence adduced at the trial.

It is on account of this and the more elaborate lead judgment of my Learned Brother MOHAMMED BABA IDRIS, JCA, that I find this appeal to be meritorious in part and ought also to be allowed in part. I accordingly allow same in part.

I abide by the Orders contained in the lead judgment.

STEPHEN JONAH ADAH, J.C.A.: I was availed a draft copy of the judgment just delivered in Court

by my learned brother, Mohammed Baba Idris, JCA.

My learned brother has sufficiently dealt with all the issues raised in this appeal. I am in agreement with the reasoning which I adopt as mine. I too, do allow this appeal in part and I abide by the consequential orders as made in the lead judgment.

Appearances:

Ilumah Esq and O. O. Akinwole Esq For Appellant(s)

I. Kalu Esq. for the 1st, 3rd – 8th Respondents
M. S. Ibrahim Esq with J. U. Agbaduh Esq for 2nd Respondent For Respondent(s)