FBN v. MADAUKOR & ANOR (2020)

FBN v. MADAUKOR & ANOR

(2020)LCN/14857(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, December 21, 2020

CA/A/488/2016

RATIO

JURISDICTION: NATURE OF THE ISSUE OF JURISDICTION

It is now elementary that, the issue of jurisdiction is the life wire of any proceedings in that, where it is found that the Court has no jurisdiction, however well the proceedings were conducted, a verdict of nullity would be entered as if the proceedings never took place and amounting to sheer waste of the much needed judicial and everyone’s time and resources.

Jurisdiction of the Court is determined by the claim on the Claimant’s writ of summons and statement of claim. See the cases of ADEYEMI V. OPEYORI 1976 9-70 SC 31, TUKUR V. GOVT. OF GONGOLA STATE 1989 4 NWLR PT. 117, SAUDE V. ABDULLAHI 1989 4 NWLR PT. 116 387 SC, MADUKOLU V. NKEMDILIM 1962 2 SCNLR 341, PETROJESSICA ENTERPRISE LTD. V. LEVENTIS TECH. CO. LTD. 1992 5 NWLR PT.244 675, FORESTRY RESEARCH INSTITUTE OF NIGERIA V. GOLD (2007) LPELR-1287(SC), IDIH V. UTENO 2009 LPELR-CA/A/230/06 and a host of other cases. PER WILLIAMS-DAWODU, J.C.A.

PROCESS: EFFECT OF FAILURE OF SERVICE OF ORIGINATING PROCESS

It is trite and settled that where service of the originating process is found not to have been effected in respect of any of the parties in a suit, such non-service or gap robs the Court of its jurisdiction. This Court in the case of CARRIBEAN TRADING & FID CORP. V. NNPC 1999 6 NWLR PT.797 356 per Niki Tobi of blessed memory stated thus:

The primary duty of a trial Court is to evaluate evidence and ascribe probative value to same. An appellate Court will only interfere where there are reasons to justify such, if the findings are not sound which is not the case herein, See the cases of OMOREGIE V. IDUGIEMWANUE 1985 2 NWLR PT.541, ANYANWU V. MBARA 1992 5 NWLR 386 AND DANIEL OGBAJE V. ABUJA INVESTMENT & PROPERTY DEVELOPMENT CO. LTD. 2007 LPELR-CA/A/173/2005. PER WILLIAMS-DAWODU, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

FIRST BANK OF NIGERIA PLC APPELANT(S)

And

1. MRS THERESA MADAUKOR 2. MR. EPHRAIM RESPONDENT(S)

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of the High Court of the Federal Capital Territory, Abuja, delivered on May, 31st 2016, by Hon. Justice Salisu Garba, wherein the Court found in favour of the 1st Respondent (the Plaintiff at the Court below) against the Appellant and the 2nd Respondent (the 2nd and 1st Defendants respectively at the Court below) jointly and severally.

The 1st Respondent instituted an action against the Appellant and the 2nd Respondent vide Writ of Summons dated July, 3rd 2015. Her grouse was that, she entered into a fixed deposit contract with the 2nd Respondent who claimed to be acting for and on behalf of the Appellant and sought the following reliefs:
1. A declaration of the Hon. Court that the joint and several acts of the defendants in not releasing plaintiff’s invested/deposited N1,500,000.00 (One Million Five Hundred Thousand Naira) with the accumulated interest at the respective maturity due dates and the defendants further refusal to release same is a breach of contract and is wrongful and illegal.

An award of the sum of N1,500,000.00 (One Million Five Hundred Thousand Naira) being liquidated damages and moneys the plaintiff deposited with the defendants as fixed deposit.
3. An award of N300,000,000.00 (Three Hundred Million Naira) as general damages.
4. The sum of N1,000,000,00 (One Million Naira) cost of this action.
5. An award of 10% interest on the entire judgment sum from the date of the judgment till same is finally liquidated.

Being dissatisfied with the decision of the Court, the Appellant filed on 28/6/2016 its Notice of Appeal of same date with Six (6) Grounds and seeks an order of this Court setting aside the decision of the Court below.

Complying with the Rules of this Court, the parties have filed and exchanged their briefs of argument. The Appellant’s brief, dated March 6th, 2017, filed July 3rd, 2017 and deemed on June 11th, 2018 as properly filed and served was settled by Eko Ejembi Eko Esq. and a Reply dated January 15th, 2017, filed January 18th, 2018 and was deemed as properly filed and served on June 11th, 2018. The Respondent’s brief, dated and filed on September 20th, 2017, was settled by Maxwell Opara Esq. and deemed properly filed and served on June 11th, 2018.

ISSUES SUBMITTED BY THE PARTIES FOR DETERMINATION
The Appellant submitted the following four (4) Issues:
i. Whether the Court was vested with the requisite jurisdiction to proceed with the trial; and whereas there was no evidence of service of the originating processes and hearing notices on the 2nd Respondent whose liability had to be established before the vicarious liability of the appellant can occur (Grounds 3 and 4).
ii. Whether there was sufficient evidence before the learned trial Judge to warrant the judgment in favour of the 1st Respondent (1 and 6).
iii. whether the trial Judge did not speculate in concluding that the 2nd respondent in the case before him was the same as the 2nd defendant in another case between Donatus Okoye Nkem V. FTRST BANK PLC & OTHER, SUIT NO. CV/192/14 (Ground 5).
iv. Whether the exhibits B1, B2 and C had any probative value in law and whether exhibit D was properly discountenanced by the learned trial Judge (Ground 2).

The Respondent equally submitted four (4) issues as follows:
i. Whether the Court below was right when it entered judgment against the Appellant?

Whether from the totality of the pleadings and evident (sic) before the Hon. Court below, the Appellant is liable to the claims of the 1st Respondent.
iii. Whether or not the Court below has jurisdiction to entertain the matter.
iv. Whether the Court below was right when it entered judgment against the Appellant herein?

Foregoing two sets of Issues in my view and humbly are similar in contents. I shall however state that they will justify and fairly determine this appeal.

SUBMISSION ON BEHALF OF THE APPELLANT
The learned Appellant’s Counsel, Mr. Eko Ejembi Eko Esq. asserted that the originating processes meant for the 2nd Respondent at the Court below were served on the Appellant via substituted service and were returned to the Court by the Appellant through a letter dated October 29th, 2015 in which the Appellant stated that the 2nd Respondent was unknown to it. It was therefore unable to bring the processes to the notice of the 2nd Respondent who was eventually never served as neither the 1st Respondent nor the Court took steps to effect service. He therefore submitted that failure to serve the originating processes and

hearing notices on the 2nd Respondent, a necessary party, robbed the Court of the requisite jurisdiction to entertain the suit as it’s a condition precedent to the exercise of the jurisdiction of the Court and in support cited the cases of KIDA V. OGUNMOLA 2006 13 NWLR 997 377, SKENCONSULT V. UKEY 1980 1 SC 6, APEH & 2 ORS V. PDP & 4 ORS 2016 1 SCNJ PT. IV P. 88, ALHAJI ASIMIYU ADO V. WAHEED FADAIRO ADO & 7 ORS 2016 LPELR-41116 CA and REV. FR. DR. E.C. OBIORAH V. THE FEDERAL REPUBLIC OF NIGERIA 2016 LPELR 40955 CA amongst others. That, it amounted to a denial of the Constitutional right of the 2nd Respondent to fair hearing.

He argued that, there was no sufficient evidence against the Appellant as the guilt of the alleged agent the 2nd Respondent was not first established before the consequent liability of the Appellant, the principal as the 2nd Respondent never participated in the hearing of the matter as there was no service on him as afore stated. That it was therefore necessary to determine whether or not there was an agency relationship between the Appellant and the 2nd Respondent and cited in support the case of

VULCAN GASES LIMITED V. GESELLSCHAFT FUR INDUSTRIES GASVERWERTUNG A.G.G.I.V. 2001 LPELR-3455 SC. That, the Appellant cannot be liable for the actions of the 2nd Respondent which it did not hold out directly or impliedly as its agent. Further that, the 1st Respondent never pleaded that she opened a fixed account with the Appellant, therefore cannot operate an account or demand interest from it. He submitted that the evidence of the PW2 amounted to that of an interested person as in Section 83 (3) of the Evidence Act and cited in support the case of LADOJA V. AJIMOBI & ORS 2016 LPELR-40658 SC. He contended that, the statement obtained from the DW1 during cross-examination as to whether she knew one Mr. Ephraim Gbatse, a party in another suit which was contained in the Reply discountenanced by the Court amounted to no issue and cited the case of ISHENO V. JULIUS BERGER 2008 LPELR-1544 SC and CITEC INTERNATIONAL ESTATES LTD. V. YUSUF & ANOR. 2016 LPELR-40207 CA. He submitted that the Court was wrong to have speculated that Mr. Ephraim Gbatse and the 2nd Respondent were one and the same person, a member of the Appellant’s staff as there was no documentary evidence before the

Court and in support cited the case of STATE V. AIBANGBEE 1988 3 NWLR PT. 84 548, BENDEX ENGINEERING & 1 OR V. EFFICIENT PETROLEUM NIG. LTD. 2000 LPELR 10143 CA and AMAECHI V. THE STATE 2016 LPELR-40977.

He contended that Exhibits B1, B2 and C are documentary hearsay and a breach of the 2nd Respondent’s constitutional right having had no opportunity to cross-examine, and tendered by a witness not the maker should be given no probative value. In support, he cited the cases of ARMELS TRANSPORT LTD. V. MARTINS 1970 ANLR 27 SC, EZEAZODOSIAKO V. OKEKE 2005 16 NWLR PT. 952 572 CA, FRN V. USMAN 2012 8 NWLR PT. 1301 141 SC and MUSA V. THE STATE 2013 LPELR-21866 CA amongst others. That, the Court was wrong to have admitted them as they are not in compliance with Section 46 of the Evidence Act and cited the cases of OBAWOLE V. COKER 1994 6 SCNJ 20. He argued that, Exhibit D met all statutory requirements for admissibility under Section 97 (1) of the Evidence Act 2011 and expunging same thereafter was an error on the part of the Court which occasioned miscarriage of justice to the Appellant. He cited in support the case of ARCHIBONG V. THE STATE 2006 LPELR-537 SC and

ADEGEBO & 1OR. V. OWOKALU 2013 LPELR-21113 CA. In conclusion, he urged that the appeal be allowed and the judgment of the Court below set aside.

SUBMISSION ON BEHALF OF THE 1ST RESPONDENT
Mr. Maxwell Opara Esq. learned 1st Respondent’s Counsel submitted that the Court was right to have found in favour of the 1st Respondent as the Appellant was properly served and it defended the suit before judgment was entered. It is pertinent at this point to note that, it would appear in my view and humbly that, the learned Counsel for the Respondent mixed up the particular party that was alleged to not have been served by the Appellant.

From the Appellant’s brief, it was the 2nd Respondent herein who was the 1st Defendant at the Court below which is the correct position. However, from the 1st Respondent’s submission in respect of Appellant’s Issue 1, the parties were mixed up and referred to as the Appellant instead of the 2nd Respondent which was tardy of the learned Counsel. It was quite misleading and was of no assistance to the Court.

The learned counsel submitted that substituted service ordered by a Court is proper service and that the affidavit of service is prima facie proof and cited the case of BEST WESTERN COMPANY LTD. & ORS V. UDOMISOR & ANOR 2002 FWLR PT.971 774 in support. Further that, the Court properly entertained the matter as it had jurisdiction so to do and cited the case of SOKOTO STATE COURT V. KAMDEX NIG. LTD. 2007 7 NWLR PT 1034 422. That, whether or not a Court has jurisdiction is guided by the claim of the Claimant’s over a Counter-claim and in support cited the cases of ONUOHA V. K.R.P.C. 2005 6 NWLR PT. 921 393, GAFAR V. GOVT. KWARA STATE 2007 4 NWLR PT. 1024 375 and NDIAZU LTD. & ANOR. V. NAMSON FISHING ENTERPRISE & ANOR. 2009 FWLR PT. 7 1065 and TUKUR V. GOVT. OF GONGOLA STATE 1989 4 NWLR PT. 117 517. That, the Appellant should have raised the issue of jurisdiction at the earliest opportunity and cited in support the case of NNONYE V. AMYICHIE 2005 2 NWLR PT.910 623.

He submitted that the Appellant was liable as it received the said sum of N1,500,000.00 (One Million Five Hundred Thousand Naira) from the 1st Respondent through the 2nd Respondent, its Manager who issued her the fixed deposit account receipt and there was no other tendered by the

Appellant in contradiction of Exhibits B1 and B2 and neither did the 2nd Respondent challenge them. That, since the trial Court had properly evaluated the evidence placed before it, the Appellant Court has no business to interfere with the finding of the Court and cited in support the case of ADEBAYO V. ADUSEI 2004 4 NWLR PT.862 44. In conclusion, the learned Counsel urged that the Appellant’s appeal be dismissed with substantial cost.

THE COURT
I have painstakingly gone through all the processes before this Court for and against the instant appeal. I shall therefore proceed first with the consideration of the findings of the Court and thereafter take the issues already adopted together. For ease of reference issue 1 is reproduced hereunder:
i. Whether the Court was vested with the requisite jurisdiction to proceed with the trial; and whereas there was no evidence of service of the originating processes and hearing notices on the 2nd Respondent whose liability had to be established before the vicarious liability of the appellant can occur.

“The issue of non-service of Court process affects the jurisdiction of the Court and once raised, the Court is bound to look at it -so also is the case in respect of allegation of defect in service either within or outside the jurisdiction of the Court.”
See further the cases of OLU V. IRANIOYE 2007 LPELR-CA/IL/M/.27/2006, ODUA INVESTMENT CO. LTD. V. TALABI 1997 7 SCNJ 600, MADUKOLU V. NKEMDILIM 1962 ANLR PT. 2 581, MACFOY V. UAC 1962 152, EGOLUM V. OBASANJO 1999 7 NWLR PT. 611 355, AYOGU V. NNAMANI 2005 ALL FWLR PT. 283 45 and EWINSTEL NIG. LTD. V. ABIA 2011 LPELR-CA.
As regards the question whether or not the 2nd Respondent who as afore stated was the 1st Defendant at the Court below was served, the learned Appellant’s Counsel has vehemently argued that he was not served as the Appellant by its letter of 29/10/2015 returned the process meant to be served on the 2nd Respondent for further order and therefore the entire proceedings before the Court becomes a nullity and an exercise in futility. Whereas, from the record before this Court, one finds the opposite as contained on page 174 thereof, the Court stated as follows during its evaluation of evidence:

“The 1st Defendant was duly served with the processes of this Court but in his wisdom elected not to respond to the claims against him by the Plaintiff.”
From the Record, pursuant to the 1st Respondent’s application of July 6th, 2015, for leave to serve the 2nd Respondent through substituted means by pasting the originating process at the main entrance door of the First Bank Nigeria Plc., Dei-Dei, FCT Branch, the Court on July 8th, 2015, granted leave for such service on the 2nd Respondent. It is pertinent to note that the Record of the Court on page 145 specifically at the sitting of the Court on 8/12/2015 by 12:25 pm, reads thus:
“As regard to (sic) the 1st Defendant, we have served them with the originating processes and they didn’t take any step to defend the suit as such they are aware of the defence (sic) of this suit. The 1st Defendant has been served with the hearing notice.”
And the same position is the Court’s recording on page 174 of the Record. However, there is need to make some clarifications by considering what transpired at the Court below on the issue of service of the 2nd Respondent at this juncture particularly as the said Appellant’s letter is

contained in the Record before this Court. It is therefore pertinent to note that on the 8/12/2015 on page 145 of the Record, which was the very next sitting after the Appellant’s letter of 29/10/2015 to the effect that the 2nd Respondent was unknown to it, when trial was to commence, the Appellant’s learned Counsel inquired whether service had been effected on the 2nd Respondent thus:
“Secondly the 1st Defendant is not in Court and not represented. I do not know whether they are aware of today’s date.”
The 1st Respondent’s Counsel answered in the affirmative that the 2nd Respondent had been served. The Appellant’s Counsel, with the knowledge of his client’s letter of 29/10/2015, continued with the proceedings without mentioning the said letter to the Court, hearing commenced and continued thereafter. In my considered view and humbly, with respect, having failed to assist the Court by bringing the issue of his client letter to the attention of the Court as a Minister in the temple of justice, the learned Appellant’s Counsel cannot at this stage seek to use same as a ground for an application after the judgment which is unfavorable, that another

party, the 2nd Respondent, was not served and therefore the judgment be nullified. One is fortified in this position by the apex Court which instructively and clearly stated as follows in the case of AUGUSTA CHIME & ORS V. MOSES CHIME & ORS 2001 LPELR-SC179/1995:
“The Court of appeal was perfectly right when it stated thus in the lead judgment: The application for nullification of such proceedings would be at the instance of the defendant against whom an order is made without prior notification of proceedings in which the order was made for the simple reason that a condition precedent for the exercise of the Court’s jurisdiction in making the order has not been fulfilled. I am therefore clearly of opinion that for a party to a suit to apply for the proceedings to be nullified by reason of failure of service, where service is a requirement, it must sufficiently be established that he or she has not been served in respect of the proceedings and that the order made therein affects him. It is not in my view open to every party to the proceedings to make such an officious complaint. If such complaint is sustainable, it will yield startling results.

Thus, an aggrieved plaintiff, as in the instant appeal, would be enabled to appeal against a judgment against him on the technical ground that a party to the proceedings has not served some process.”
See further the cases of OBIMONURE V. ERINOSHO 1966 1 ALL NLR246, MADUKOLU V. NKEMDlLlM supra and SKENCONSULT V. UKEY 1981 1 SC 6.
Flowing from the foregoing, the Appellant herein does not have the standing to apply for a nullification of the proceedings as it is not the 2nd Respondent. That being the position, issue 1 is resolved against the Appellant.

ISSUES 2, 3 AND 4 SHALL BE CONSIDERED TOGETHER
ii. Whether there was sufficient evidence before the learned trial Judge to warrant the judgment in favour of the 1st Respondent.
iii. Whether the trial Judge did not speculate in concluding that the 2nd respondent in the case before him was the same as the 2nd defendant in another case between Donatus Okoye Nkem V. FIRST BANK PLC & OTHER, SUIT NO. CV/192/14.
iv. Whether the exhibits B1, B2 and C had any probative value in law and whether exhibit D was properly discountenanced by the learned trial Judge.

The Court in my considered view and humbly was correct in its finding that from the evidence of the PW1, the 1st Respondent, as contained in paragraph 3 of her witness statement on oath, the 1st Defendant, the 2nd Respondent, herein is an employee of the 2nd Defendant, the Appellant herein, at the Appellant’s Branch office at Dei-Dei FCT, Abuja; that, the 2nd Respondent, in the course of his official duties lured her to open a fixed deposit account with the Appellant, which she did with a total sum of N1,500,000.00. Exhibits B1 and B2 were admitted in proof of the said transaction between the 1st Respondent and the Appellant. It further correctly found the DW1’s statement as corroborative of the 1st Respondent’s evidence on page 181 of the Record when it opined thus:
“ln what I consider to be corroborative evidence of the above facts, the DW1 under cross-examination stated thus: “l knew Ephraim Gbatse in October 2010 I was posted to Dei-Dei Branch of First Bank and I met Ephraim Gbatse.”
And from the DW1’s statement that, “Ephraim Gbatse is the Relationship Manager in Dei-Dei Branch” the Court held thus still on page 181 of the Record:

“From the evidence of DW1 above, we do not need to consult a soothe-sayer to come to terms that the 1st Defendant is an employee of the 2nd Defendant in the cause (sic) of this transaction.”
The argument by the learned Appellant’s Counsel that there was nothing to support the conclusion of the Court from afore stated testimony of the DW1, in my view humbly, cannot hold. A matter in a civil case is established on the balance of probabilities/preponderance of evidence. The testimony of the DW1, on oath, as the Appellant’s witness was rightly given probative value in that regard. As an employee of the Appellant, it is in order that the Appellant be vicariously liable for his actions during the course of his employment. This is indirect or imputed legal responsibility for the acts of another. See the cases of FBN PLC. V. ONUKWUGHA 2005 16 NWLR PT. 950 120 and the 1st Respondent properly joined the 2nd Respondent as a party at the Court below. Whether or not to defend the suit in spite of being a party was a decision and option entirely in the hand of the 2nd Respondent. It must however be noted that, having failed to respond at all, the Court was right to have deemed that the

2nd Respondent admitted the claims of the 1st Respondent, as he never denied that the 1st Respondent’s fixed deposit account was opened by him and that he gave the deposit slips, Exhibits B1 and B2, to her.
Exhibits B1 and B2 were deposit slips the Court found, were issued to the 1st Respondent by the 2nd Respondent upon the deposit of the sum of N1,500,000.00 and customized, bearing the name of the Appellant. The argument by the learned Appellant’s Counsel that the 2nd Respondent was the maker of Exhibits B1 and B2 and the proper person to tender them in my respectful view does not hold. The slips, upon the deposit of the said sum automatically became the property of the 1st Respondent as a receipt in respect of the transaction between her and the Appellant. One is able to agree with the finding given the following reason stated by the Court on page 182 of the Record:
“For the 2nd Defendant’s failure to contradict Exhibits B1 and B2 this Court would have no other option but to accept that Exhibits B1 and B2 was (sic) duly issued by the 2nd Defendant; moreso from the face of the said Exhibit there is nothing to infer that they are not documents from the 2nd Defendant.”

The DW1, the bank Manager did not produce any document or credible evidence to counter what the 1st Respondent filed nor did she deny that the Exhibits emanated from the Appellant and she admitted that the Appellant’s fix deposit documents are customized. See page 182 of the Record. In that wise, the Court was correct to resolve the issue in favour of the 1st Respondent coupled with the absolute silence of the 2nd Respondent.
Going through the gamut of the entire judgment, one is unable to find that in deed probative value was given to Exhibit C and has in any way occasioned a miscarriage of justice to the Appellant.

Similarly, on the position of the Court with respect to Exhibit D, in respect of which it was held that no proper foundation was laid, its admissibility came on the line and where it was admitted in error, it is trite that inadmissible evidence will be expunged upon discovery.

the case herein, See the cases of OMOREGIE V. IDUGIEMWANUE 1985 2 NWLR PT.541, ANYANWU V. MBARA 1992 5 NWLR 386 AND DANIEL OGBAJE V. ABUJA INVESTMENT & PROPERTY DEVELOPMENT CO. LTD. 2007 LPELR-CA/A/173/2005.

In the light of the foregoing, one is unable to disturb the findings of the Court below. Issues 2, 3 and 4 are hereby resolved against the Appellant. In consequence, this appeal cannot be allowed, it therefore fails and is accordingly dismissed. The judgment of the High Court of the Federal Capital Territory, Abuja, delivered on May 31st, 2016, by Hon. Justice Salisu Garba is hereby affirmed.

STEPHEN JONAH ADAH, J.C.A.: l was privileged to read in draft the judgment just delivered by my learned brother, Elfrieda OIuwayemisi Williams-Dawodu, JCA.

I agree fully with the reasoning and the conclusion of my learned brother that this appeal lacks merit. I too, do dismiss this appeal for the same reasons adduced in the lead judgment. I abide by the consequential orders made thereat.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; E. O. WILLIAMS-DAWODU. I agree with the reasoning, conclusion and orders therein.

Appearances:

EKO EJEMBI EKO, with him, O. N. BAMISAYEMI For Appellant(s)

YAGAZIE OBINNA – for 2nd Respondent For Respondent(s)