GUARANTY TRUST BANK PLC v. YUNANA SOLOMON (2016)

GUARANTY TRUST BANK PLC v. YUNANA SOLOMON

(2016)LCN/8189(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of February, 2016

CA/YL/57/2015

RATIO

APPEAL: WHICH OF THE PARTIES HAS THE DUTY TO SHOW DEFENCE ON THE MERIT OR TRIABLE ISSUE UNDER THE SUMMARY JUDGEMENT PROCEDURE

PRACTICE AND PROCEDURE: NON JOINDER AND MISJOINDER; WHTHER THE NON JOINDER OF A NECESSARY PARTY IN A SUIT IS AN IRREGULARITY THAT CAN AFFECT THE COMPETENCE OR JURISDICTION OF A COURT

The law is now well settled that non joinder or even misjoinder of even necessary parties to a Suit is a mere irregularity which by itself is no longer capable in law to render an otherwise competent Suit incompetent. See Azuh V. UBN Plc (2014) LPELR 22913 (SC), where the Supreme Court per Kekere ? Ekun JSC., had pronounced with finality thus:
The position of the law is that non joinder of a necessary party in a Suit is an irregularity that does not affect the competence or jurisdiction of a Court to adjudicate on the matter before it?
See also Okoye V. Nigerian Construction & Furniture Co. Ltd. & Ors. (1991) 7 SC (Pt. 111) (Reprint) 33 @ p. 56; Green V. Green (1987) 3 NWLR (Pt. 60) 480.
However, a caveat must be pointed out immediately that in law if a necessary party or any party for that matter is not joined to a Suit, any order made against a person who was not a party to the Suit before the Court, though not a nullity, is to no avail and thus not binding on such a non party to the action. See Uwazurike & Ors. V. AG. Federation (2013) 4 ? 5 SC (Pt. 1) 90 @ p. 119. See also Uku V. Okumagba (1974) 1 All NLR (Pt. 1) 475; Azuh V. UBN Plc (supra) @ pp. 37 ? 38. per. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

CRIMINAL LAW: THE ALLEGATION OF LAW; THE REQUIREMENTS OF THE LAW FOR PARTICULARS OF FRAUD TO BE SET OUT

CRIMINAL LAW: AN ALLEGATION OF FRAUD; THE CONDITION FOR AN ALLEGATION OF FRAUD TO AVAIL A DEFENDANT IN A SUIT PLACED ON THE UNDEFENDED LIST
In Ezekiel Okoli V. Morecab Fin. (Nig) Ltd (2007) 14 NWLR (Pt. 1053) 37; Onu JSC., had aptly puts it thus:
For an allegation of fraud to avail a Defendant in a suit placed on the undefended list, it must be on matters relevant to the case put up by the Plaintiff.
See also Nishizawa Ltd V. Jethwani, (1984) 12 SC 234; John Holt (Liverpool Ltd) V. John Holt (1961) All NLR (Reprint) 492; Wellington V. Mutual Society (1880) AC 685 @ P. 704; Hajiya Maimuna Garba & Ors V. Alhaji Buba Pate Zaria (2005) 17 NWLR (Pt. 953) 55. per. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

CRIMINAL LAW: AN ALLEGATION OF FRAUD; THE IMPLICATION OD AN ALLEGATION OF FRAUD THAT IS MERELY GENERIC, VAGUE AND LACKING IN THE SPECIFIC AND PARTICULARS

An allegation of fraud that is merely generic, vague and lacking in the specific and particulars is in law a non-starter and useless. See PDP V. INEC & Ors (2012) LPELR 9724 (SC) Nishizawa Ltd V. Jethwani (1984) 12 SC 234. Wellington V. Mutual Society (1880) 5 App Cas 685; UBA & Anor V. Alhaji Babangida Jangaba (2007) 11 NWLR (Pt. 1045) 247; Sanusi Bro Nig Ltd V. C. C. E. S.A (2001) 11 NWLR (pt. 579) 566. per. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

CONSTITUTIONAL LAW: THE PRINCIPLE OF FAIR HEARING; WHETHER A CASE SHOULD BE TRANSFERRED FROM UNDEFINED LIST TO THE GENERAL ON THE BASIS OF FAIR HEARING

A case should not be transferred from undefended list to the general cause list merely on the whims and caprices of a Defendant who merely finds the words ‘fair hearing’ a convenient as well as handy slogan.
In J.O.E. Co. Ltd V. Skye Bank Plc (2009) 6 NWLR (Pt. 1138) @ P. 518, the
Supreme Court threw further light on this salient issue thus: “The principle of fair hearing is not only fundamental to adjudication but also a constitutional requirement which cannot be legally wished away. It is a fundamental right of universal application. per. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

CONSTITUTIONAL LAW: FAIR HEARING: THE IMPORTANCE OF FAIR HEARING IN THE HEARING OF A CASE

There can be no doubt that fair hearing is in most cases synonymous with natural justice, an issue which clearly is at the threshold of our legal system, once there has been a denial of fair hearing as guaranteed under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended, the whole proceedings automatically become vitiated. A denial of fair hearing can ensure from the conduct of the Court in the hearing of a case. See Ofapo V. Sonmonu (1987) 2 NWLR (Pt. 58) 587; Wilson V. AG of Bendel State (1985) 1 NWLR (Pt. 4) 572. See also A. U. Amadi V. Thomas Aplin & Co Ltd (1972) All NLR 413. per. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

CONSTITUTIONAL LAW: AN ALLEGATION OF DENIAL OF THE RIGHT TO FAIR HEARING; THE EFFECT PF AN ALLEGATION OF DENIAL OF THE RIGHT TO FAIR HEARING
An allegation of denial of the right to fair hearing, a constitutionally guaranteed right of the citizen, is a very grave allegation whenever made and therefore must not be made carelessly or lackadaisically or lightly against the Court merely to cause distraction from the real issues in contention between the parties before the Court.
This is so because in law once an allegation of denial of fair hearing is made out against any proceedings and or judgment, it renders it a nullity, regardless of the merit or otherwise of the cases of the parties. I hold that the Appellant’s right to fair hearing was scrupulously observed and accorded its rightful place by the Court below and thus the complaint of denial of right to fair hearing against the Court below by the Appellant was highly misconceived and lacking in merit. See Robert C. Okafor & Ors V. AG and Commissioner for Justice Anambra State (1991) 6 NWLR (PT. 200) 659. per. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

JUSTICES

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria

BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria

Between

GUARANTY TRUST BANK PLC Appellant(s)

AND

YUNANA SOLOMON Respondent(s)

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of Adamawa State High Court of Justice, Yola delivered on the 13/7/2015 by Hon. Justice, Ambrose Mamadi in Suit No: ADSJ/83/2014: Yunana Solomon V. Guaranty Trust Bank Plc., in which judgment was entered in favour of the Respondent against the Appellant under the Summary Judgment Procedure.
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The Respondent was the Plaintiff before the Court below and had on 26/09/2014 instituted Suit case against the Appellant as Defendant. The Respondent filed all the Originating processes in line with Order 22(1) of the Adamawa State High Court (Civil Procedure) Rules, 2013 to wit: Writ of Summons, Statement of claim, copies of the exhibits and a deposition of his witnesses together with an application for summary judgment supported by a 33 paragraphs affidavit stating the grounds for the Respondent?s belief and a written address in respect thereof which was served on the Appellant. The Appellant in response on 07/11/2014 filed its Statement of Defence, deposition of witness, list of documents together with a counter-affidavit and a

written address in reply to the application for summary judgment. On the 25/11/2014, when the matter came up for hearing of the Motion for summary judgment before the Court below, counsel to the respective parties duly adopted their written addresses, which they re-adopted on 13/07/2015 and the Court below on the same date entered its final judgment for the Respondent under the summary judgment procedure in the sum of N4 million together with 5% interest of the judgment sum.
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The Respondent?s case at the trial Court was for the refund of the sum of N4, 000. 000. 00 he claimed to have deposited in a Fixed Deposit Account with the Appellant on 11/9/2013 at the Banking Hall of the Appellant?s Mubi Branch with the assistance of one Mrs. Stella Sati which he claimed was a staff of the Appellant to whom he was directed by another staff at the counter, one Mr Samson. On the other hand, the Appellant alleged that it had no record of the transaction between the Respondent and Mrs. Stella Sati and that the relationship between Appellant and Mrs. Stella Sati was not that of Agency relationship and at any rate there was an allegation of crime against the

said Mrs Stella Sati.

The Notice of Appeal was filed on 16/7/2015 containing five grounds of appeal against the judgment of the Court below. The Record of Appeal was duly transmitted to this Court on 14/8/2015. The Appellant?s brief was filed on 5/11/2015 but deemed properly filed on 10/12/2015. The Respondent?s brief was duly filed on 10/12/2015.

The Appellant?s reply brief was duly filed on 23/12/2015.
At the hearing of this appeal on 1/2/2016, Miss Rashida Babayo, counsel for the Appellant adopted the Appellant?s brief and the Appellant?s Reply brief as their argument in support of the appeal and urged the Court to allow the appeal, set aside the judgment of the Court below and to transfer the suit before the Court below to the general cause list for hearing and determination on the merit. On his part, Hassan G.
Maidawa Esq., learned counsel for the Respondent adopted the Respondent?s brief as their argument in opposition to the appeal and urged the Court to affirm the judgment of the Court below.
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In the Appellant?s brief the following issues were distilled as arising for determination,

namely:
(1) Whether the trial Judge was right to have granted the application for summary judgment having regard to the elements of crime manifest in the case?
(2) Whether the trial judge did not deny the Defendant?s the right to fair hearing when he held that there was no defence to the suit?

In the Respondent?s brief, the following issues were distilled as arising for determination, namely:
1. Whether the Appellant has made out a defence on the merit and/or a triable issue in its Counter affidavit in reply to the application for summary judgment as to be let in to defend the Suit?
2. Whether the trial Court was right in entering judgment in favour of the Respondent in the circumstances of the case?

I have given due and anxious consideration to the fact, circumstances and the evidence in the printed record, the judgment of the Court below and the submissions of counsel in their respective briefs and I am of the view that the two issues for determination as distilled by the Respondent?s counsel are more apt and best represent the real issues for determination in this appeal. Indeed, a consideration of these two

issues would, in my view, invariably involve a consideration of the two issues as distilled by the Appellant’s counsel. I hereby adopt and set down the following as the two issues for determination in this appeal, namely;
1. Whether the Appellant has made out a defence on the merit and/or a triable issue in its Counter-affidavit in reply to the application for summary judgment as to be let in to defend the Suit.
2. Whether the trial Court was right in entering judgment in favour of the Respondent in the circumstances of the Case.
ISSUE NO ONE:
“Whether the Appellant has made out a defence on the merit and/or a triable issue in its Counter-affidavit in reply to the application for summary judgment as to be let in to defend the Suit.”

The Appellant’s counsel had submitted that by the affidavit evidence and the statement of claim of the Respondent, particularly Paragraphs 8, 9, 10, 11, 12, 14 and 16 it was shown that allegation of fraud was being levelled against Mrs. Stella Sati and contended that in law where in a civil case a crime is being alleged, it is the duty of the Court to first determine the criminal

case first prove beyond reasonable doubt.

Counsel submitted that fraud means a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment and thus it is usually a root of a conduct is wilful and it may be a crime. Counsel referred to Black?s Law Dictionary, 8th Edition, @ p. 685 and relied on Jegede V. Federal Republic of Nigeria (2013) All FWLR (Pt. 666)1.

Counsel submitted that by Section 137 Evidence Act, he who asserts an illegality or fraud must prove it beyond reasonable doubt and contended that the crime was allegedly committed by Mrs. Sati who allegedly collected the cash deposit with intention to defraud the Respondent, which intention can only be established by trial to know whether actually there was such an intention or not and which is to be admitted or denied by the said Stella Sati.. Counsel relied on Biezan Exclusive Guest House Ltd V. UHSS/L Ltd (Supra).

Counsel submitted that by the counter affidavit evidence of the Appellant, it told the Respondent upon his enquiry that Stella Sati was being investigated for criminal conducts, while also showing that there is

allegation of crime and the Police was already involved in it and contended that the Court below failed to accord the Appellant the opportunity of defending its case to prove the allegation of fraud, since in law an allegation of fraud raised can only be proved by evidence during trial and not on summary application. Counsel relied on Babatunde V. Bank of the North Limited (2012) All FWLR (Pt. 608).

It was further submitted for the Appellant that even if it was the Appellant that raised the issue of fraud, it should have been allowed to prove it beyond reasonable doubt and not by shutting it out from proving whether there was actual fraud or otherwise and the Court was urged to resolve the first issue in favour of the Appellant.
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Learned counsel for the Respondent had submitted that in an action for summary judgment, the trial Court is only required to consider the affidavit evidence contained in the affidavit or counter-affidavit filed by the parties and contended that a Defendant?s counter-affidavit must condescend upon particulars and should as far as possible deal specially with the Plaintiff?s claim and thus a bare denial would not

disclose a defence which at least will throw some doubt on the Plaintiff?s claim.
Counsel relied on Aso Motel Kaduna Ltd V. Deyemo (2006) 7 NWLR (Pt. 978)80 @ P. 87.

Counsel submitted that the Appellant?s defence to the specific claim of the Respondent is that the transaction between the Respondent and Mrs. Stella sati is independent of the Appellant and was done in her personal capacity and contended that such facts does not in any way constitute a defence on the merit to the specific claim of the Respondent and as it also does throw any doubt to the specific claim of the Plaintiff in that it is a sham.

It was further submitted for the Respondent that in law a master is liable for both the authorized act and unauthorised mode of doing an act authorised by the master.
Counsel relied on Union Bank (Nig) V. Ajagu (supra); Young V. Edward Box & Co (1951) 1 TLR 789; ACB Ltd Calabar V. Agbonyin (1960) 1 NSCC @ p. 12.

On the issue of fraud, counsel submitted that the issue of fraud raised by the Appellant was nothing but a figment of its imagination and contended that the Appellant has totally misconceived the

Respondent?s case, which was not about the Mrs. Stella Sati or her alleged fraud but the liability of the Appellant toward the Respondent for the act of its agent. Counsel relied on Aso Motel Kaduna Ltd V. Deyemo (supra) @ p. 123.

Counsel urged the Court to hold that Appellant has no triable issues or defence to the Respondent?s case and should not be allowed to hide under the cloak of imaginary defence of fraud with no shred of particulars in support of to postpone the day of reckoning. Counsel relied on Udemba V. Morecab Fin (Nig) Ltd (2003) 1 NWLR (Pt. 800) 96; Macaulay V. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283 @ p. 325; Agro Millers Ltd V. C.M.B (Nig) Plc (supra) @ pp. 477 ? 478.

In the Appellant?s reply brief, it was submitted that the position of the law is that once there is evidence of triable issue, not necessarily a successful defence, the Defendant ought to be given opportunity to be let in to defend the claim of the Plaintiff and contended that the Respondent misconceived the issue of fair hearing, which must not be sacrificed on the altar of speedy trials where there are controversial issues or dispute

or where issues have been joined as the Courts are enjoined to look at the affidavit evidence presented by parties critically and draw a conclusion not tilting to one position on the altar of hastily determining a case. Counsel relied on Onyedibe V. Madueke (2012) All FWLR (Pt. 630)1342; Iho V. Wombo All FWLR (2011) (Pt. 591) @ p. 1514; Onyedibe V. Maduekwe (1012) All FWLR (Pt. 630)1342.

My Lords, the fulcrum of this appeal, which is aptly encapsulated in the first issue for determination is the vexed issue of when proceedings under the summary judgment procedure can be properly invoked by a party and how is it defended by the other party and when should such a claim be transferred to the general cause list.

In law, a summary judgment provision is usually aimed at dispensing with dispatch cases which are virtually uncontested and thus it also applies to cases where there can be no reasonable doubt that a Plaintiff is entitled to judgment and where it is inexpedient to allow a Defendant to defend for mere purposes of delay. It is for the plain and straight and not for the devious and crafty. See Uba & Anor V. Jargaba (2007)11 NWLR (Pt. 1045) 247,

where the erudite Tobi JSC., had lucidly explained the rationale for the analogous undefended list procedure thus:
“For an action to be transferred from the undefended list to the general cause list there must be a defence on the merit and detail and particulars of defence must be set out. It must not be a half hearted defence. It must not be a defence which is merely fishing for skirmishes all over the place. It must be real defence on the merit and not a counterfeit of it……. The undefended list proceeding is a truncated form of ordinary civil hearing peculiar to our adversary system where the ordinary hearing is rendered unnecessary due in the main to the absence of an issue to be tried or the quantum of the Plaintiff?s claim disputed to necessitate such a hearing……. The Undefended list procedure is designed to secure quick justice and avoid the injustice likely to occur when there is no genuine defence on the merits to the plaintiff?s case.
The procedure is to shorten the hearing of a suit where the claim is for liquidated sum”
See also Agro Millers Limited V. Confidential Merchant Bank (Nig) Plc (1997) 10

NWLR (Pt. 525) 469.

The facts of this case as it relate to the relationship between the Appellant and the Respondent is clearly that of Banker/Customer relationship. There is also not much of any serious dispute as to the fact of the relationship between the Appellant and one Mrs. Stella Sati, who the Respondent alleged received the N4, 000,000.00 from him and allegedly paid it into a fixed deposit account on his behalf in the Appellant’s Branch in Mubi on 11/9/2013.

The slight difference in the position of the parties is that while the Appellant contends that Mrs. Stella Sari acted independently in the transaction with the Respondent and was also not a staff or agent of the Appellant having been deployed to the Appellant by one Integrated Corporate Service Ltd pursuant to a Support Staff Management Service Agreement with the Appellant as in Exhibit X.
On the other hand, it was the contention of the Respondent that Mrs. Stella Sati acted in her capacity as a staff of the Appellant on 11/9/2013 in the transaction with the Respondent in the course of her duties.

The above diametrically opposed contention of the parties was clearly

understood and well considered by the Court below and was captured in its judgment thus:
?My reading of the affidavit and Exhibit ?X? clearly shows and I hold that Mrs. Stella Sati was an agent of the Defendant on 11/9/2013 when she transacted business with the Plaintiff. I agree with the submission with the Plaintiff that she was an agent of the Defendant and that the Defendant is liable for her acts irrespective of whether she is made Defendant to this suit or not. ………… My reading of Exhibit ?F? the Plaintiff?s writ of summons paragraphs 6 ? 13 of his supporting affidavit and Exhibit ?A? in his affidavit does not allege any criminal act against the said Mrs. Stella Sati nor the Defendant. If my reading of the averments is correct and which I hold is so, Plaintiff said he approached the bank to transfer the sum of N4, 000,000.00 from his savings account to a fixed deposit account which transaction took place vide Exhibit ?A? see paragraph 11 of plaintiff supporting affidavit Throughout the Plaintiff?s 33 paragraphs affidavit in support of this application Plaintiff never

alleged any fraud on the part of Mrs. Stella Sati. I cannot see any allegation or even suspicion of fraud against Mrs. Stella Sati by Plaintiff from the time he entered Defendant’s banking hall on 11/09/2013 and approached one Samson, the Defendant’s cashier on the Counter to inquire how to transfer the sum of four million from savings account to a fixed deposit account which Mr. Samson introduced Plaintiff to Mrs. Stella Sati ? see paras. 6 and 7 of the plaintiff?s affidavit…. As earlier stated, Defendant is the one that has raised the issue of fraud against Mrs. Stella Sati but has not stated the period or periods Mrs. Stella Sati engaged in these frauds. ………. My answer to my earlier question why Defendant failed to state the period/periods if at all Mrs. Stella was acting fraudulently either before or after the Plaintiff transacted business with her are not true. I am of the opinion and hold that from the affidavit evidence before me coupled with the Exhibits, I cannot see where the bank/Defendant has shown the said Mrs. Stella Sati acted fraudulently when she transacted business with the Plaintiff. I cannot see from the

affidavit evidence, any proof of any element of fraud or crime in the transaction between Mrs. Stella Sati and the Plaintiff.”

My Lords, in law whether a person is an agent of another or not is usually determined on the facts of the relationship as proved in evidence before the Court. It is for this reason it is in law the relationship of principal and agent may arise in any one of five ways, namely;
(1) By express appointment whether orally or by letter of appointment and no formality such as writing is required for the valid appointment of an agent except in execution of a deed;
(2) By ratification of the agent?s act by the principal;
(3) By virtue of the doctrine of estoppels;
(4) By implication of law in the case of agency of necessity;
(5) By presentation of law in the case of cohabitation.
See Vulcan Gases Ltd V. Gesellschaff Fir Industries G. A. G. (GIV) (2001) 9 NWLR (Pt. 719) 610. See also Onyenuga V. I.C.L (1991) 1 NWLR (Pt. 168) 415; Niger Progress Ltd V. North East line Corporation (1989) NWLR (Pt. 107) 68.

It is now well settled that a disclosed principal may sue or be sued on any contract made

on his behalf and in respect of any money paid or received on his behalf by his agent acting within the scope of his actual authority. See Dr. Dozie Ikedife & Anor V. Clement Obienu (1975) 4 SC (Reprint) @ p. 14. See also George Ashibuogwu V. The Attorney General, Bendel State & Anor (1988) NWLR (Pt. 69) 138.

In law, a principal whether disclosed or otherwise is in position to plead any defence available to him, but in the case of fraud, where the agent acts within the scope of his authority, actual or apparent, the act of fraud on the part of the agent binds the principal and the same goes for an act of undue influence against a third party and brought to bear on the principal by the agent. Indeed, in all these instances it is for the problem to be sorted out between the principal and the agent and not with the third party. Thus, where there is nothing ex-facie illegal in the act of an agent on behalf of his principal, the principal is liable for the acts of the agent carried out in the course of his duties. As a general rule therefore, where an agent makes a contract solely in his capacity as agent, between his principal and a third party, he is

not liable to the third party thereon. It is the principal that is liable. See Deji Oyenuga V. International Computer (Nig) Ltd (1991) 1 NWLR (Pt. 168) 41. See also Freeman and Lockyer V. Buckhurst Park Properties Ltd (1964) 24 BD 480; Alhaji Ibrahim Nakyauta V. E. Levis Thomas & Anor (1975) 5 SC (Reprint) 48; Razaq A. Balogun V. ACB Ltd & Or (19972) 1 SC (Reprinted) 54. See also Bowstead on Agency 13th Edition, Articles 117.

What then is the concept of Agency in law? Agency is the fiduciary relationship created by express or implied contracts or by law in which one party the agent may act on behalf of another party (the principal) and binds that other party by word or action, thus a principal is one who authorizes another to act on his behalf while an agent is one who is authorised to act for or in in place of another, a representative. See Black Law Dictionary 7th Edition. See also Bayero V. Mainasara (2006) 8 NWLR (Pt. 982) 391;
Procedures for summary judgment are provided for in Order 22 of the Adamawa State High Court Civil Procedure Rules 2013. Going by the several judicial authorities on the essence of this procedure, which is somewhat

akin and used interchangeably in some of these judicial authorities with Undefended list procedure, is geared towards the attainment of speedy but substantial justice in cases in which a Defendant really has no defence to the claim of the Plaintiff against him and that is nothing worth being further investigated by the Court on the affidavit evidence of the parties.

The very straight forward, and if I dare say very simple uncomplicated procedure is that on the date fixed for hearing of the application for summary judgment, the Court would after hearing the parties or their counsel ascertain if on the facts as placed before it the Defendant had made out any triable issue or defence on the merit. In arriving at such a finding, the Court would critically scrutinize and examine the pleadings of the parties, their affidavits and documentary Exhibits if any to determine at that stage if the Defendant has disclosed any defence on the merit or raised at least triable issue that would need to be further investigated into by the Court by way of a full hearing. However, where the Court finds that the Defendant has not disclose any defence on the merit or raised any

triable issue, Court is under a duty to proceed to enter judgment in favour of the Plaintiff against the Defendant, no more no less.

In law, where there are substantial conflicts as to the facts of the case on the pleadings and affidavit of the parties, it would be sufficient to hold that the Defendant has raised some triable issues as would required further enquiry and thus a transfer of the matter to the general cause list would be made so that the right of the parties would be settled on the merit on the evidence as would be put forward by them at the trial. See Delta Air Services Ltd V. Sudan Airways Ltd (2004) All FWLR (Pt 238) 697.

Now, by Exhibit A, at page 29 of the record of Appeal which is a deposit slip of the sum of N4,000,000.00 duly signed and stamped with the stamp of the Appellant, it is beyond any dispute and as rightly found by the Court below that the Respondent made a deposit of N4,000,000.00 into the account with the Appellant’s Mubi Branch on 11/9/2013 and which was received by Mrs. Stella Sati to the knowledge of yet another staff of the Appellant, one Mr. Samson. These facts as are duly established on the affidavit

evidence in support of the pleadings of the Respondent and I take them as duly established as facts as rightly found by the Court below.

The only crucial contention in this appeal is whether the Respondent proved the existence of any agency relationship between the Appellant and Mrs. Stella Sati. There is also the issue whether on the strength of the Appellant’s counter affidavit, alleging as it claims, fraud against the Mrs. Stella Sati, the Court below was right to hold that the Appellant did not discloses any defence on the merit or triable issue and proceeding to entering judgment in favour of the Respondent against the Appellant and whether such a decision did not deny the Appellant of its right to be fairly heard in proof of the allegation of fraud against the acts of Mrs. Stella Sati?

My Lords, in considering the facts of the appeal with a view to determining whether the Court below was right or wrong in its assessment of the affidavit evidence of the parties and the conclusions and findings arrived at, I think we must go back to the very beginning, the genesis of the dispute between the parties.

On 16/6/2014, by Exhibit B the

Respondent had written through his Solicitor to the Mubi Branch Manager of the Appellant demanding for the payment of his N4,000,000.00 together with interest. This letter gave in graphic details the events and transaction between the Respondent and the Appellant on 11/9/2013, not leaving out the names of the staff of the Appellant that the Respondent dealt with. On 18/6/2014, the Appellant caused an initial response to the Respondent?s demand in which it informed the Respondent of its having commenced investigation into his complaint and demand. This is Exhibit C, by which tenor no issue were yet joined with the Respondent by the Appellant.
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However, on 25/6/2014, the Appellant by its letter to the Respondent? Solicitor informed the Respondent of the finding on its investigation to the effect that the transaction between the Appellant and one Mrs. Stella Sati is independent of the Appellant and was carried out in her personal capacity to the execution of the Appellant and therefore, the Appellant denied liability for the act of the said Mrs. Stella Sati. Interestingly, but seemingly curious, no allegation of fraud was made at the material time

by the Respondent, an allegation which later turned out to be the major plunk of the defence of the Appellant and is certainly the crux of this appeal.
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It is the contention of the Appellant that Mrs. Stella Sati was never its staff, having only been deployed to the Appellant by Integrated Corporate Service Ltd in line with the Support Staff Service Management Agreement as in Exhibit X at pages 52 ? 62 of the record. It is also the contention of the Appellant that Mrs. Stella Sati in acting independently of the Appellant in the transaction with the Respondent was involved in a fraudulent activity for which the Appellant is not liable to the Respondent, who was accordingly advised to proceed against Mrs. Stella Sati personally for his money and having even failed to join her to the Suit there was nothing on which judgment ought to have been entered against the Appellant on account of the personal and independent acts of Mrs Stella Sati. See paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 of the Appellant?s counter affidavit at pages 47 ? 50 of the record together with Exhibits G and X at pages 51 ?

62 of the record.

The duty to show defence on the merit or triable issue under the Summary Judgment
Procedure is squarely on the Appellant, who was the Defendant at the Court below.
See Order 22 (4) of the Adamawa State High Court Civil Procedure Rules 2013. On the issue of non joinder of Mrs Stella Sati to the Suit by the Respondent, the law is now well settled that non joinder or even mis ? joinder of even necessary parties to a Suit is a mere irregularity which by itself is no longer capable in law to render an otherwise competent Suit incompetent. See Azuh V. UBN Plc (2014) LPELR 22913 (SC), where the Supreme Court per Kekere ? Ekun JSC., had pronounced with finality thus:
?The position of the law is that non joinder of a necessary party in a Suit is an irregularity that does not affect the competence or jurisdiction of a Court to adjudicate on the matter before it?
See also Okoye V. Nigerian Construction & Furniture Co. Ltd. & Ors. (1991) 7 SC (Pt. 111) (Reprint) 33 @ p. 56; Green V. Green (1987) 3 NWLR (Pt. 60) 480.
However, a caveat must be pointed out immediately that in law if a necessary

party or any party for that matter is not joined to a Suit, any order made against a person who was not a party to the Suit before the Court, though not a nullity, is to no avail and thus not binding on such a non party to the action. See Uwazurike & Ors. V. AG. Federation (2013) 4 ? 5 SC (Pt. 1) 90 @ p. 119. See also Uku V. Okumagba (1974) 1 All NLR (Pt. 1) 475; Azuh V. UBN Plc (supra) @ pp. 37 ? 38.

In the light of the above trite position of the law therefore, and coupled with the position of law as earlier stated in this judgment on the proprietary of suing a disclosed principal for the act of his servant or agent, should it be found later in this judgment that Mrs Stella Sati was an agent of the Appellant, then the issue of her non joinder to this Suit would become a non starter. See also Onyenuga V. I.C.L (1991) 1 NWLR (Pt. 168) 415. Niger progress Ltd V. North East line Corporation (1989) NWLR (Pt. 107) 68 SC; Obaseki JSC;
Let me proceed at once to consider the position of the law on the relationship if any between the Appellant and Mrs Stella Sati on the facts as disclosed by the parties. The Respondent?s case was that on

11/9/2013 he walked into the banking hall of the Appellant?s Mubi Branch where he met Mrs Stella Sati on her desk on the direction of one Samson, who was in the Counter and with her assistance he first withdrew the sum of N4, 000, 000. 00 from his saving account, a sum which by the way was almost his entire gratuity and retirement benefit from his former employer PHCN, and the said amount was then deposited in a fixed deposit for him by her and a deposit slip as in Exhibit A issued to him in due acknowledgment of the receipt of the said amount by the Appellant.

In Exhibit E, dated 25/6/2014, the very letter in which the Appellant denied liability to the Respondent for the act of the said Mrs Stella Sati, who the Appellant claims was never their staff and has acted in her personal capacity in the transaction with the Respondent on 11/9/2013, this was what the Appellant stated inter alia thus:
“In view of the forgoing, the Bank is unable to take liability for the personal action of the said Stella Sati, who is no longer a staff of the Bank”

In this appeal the Appellant, contrary to its own statement in Exhibit E, is contending

that the said Stella Sati was never its staff and not that she was no longer its staff. This is clearly preposterous, incredible and an afterthought.

Furthermore, by Article 16 and Schedule 1 to Exhibit X, the Support Staff Management Service agreement, heavily relied upon by the Appellant to show that Stella Sati was never its staff, it was stated inter alia thus:
?Article 16: Indemnity; The Bank shall rely on the company skill ……in exchange the Company shall indemnify and keep the Bank indemnified from and against any, and all losses, cost, damages, liability suffered by the Bank as a result of a breach of the agreement by the Company, including but not limited to …… (1): Any act or neglect of the employees or agents deployed to the Bank by the Company…?
?Schedule 1: Remuneration; (2): The Bank shall pay a management fee of N70, 000, 000. 00 only per annum and recruitment cost of N10, 000. 00 per Agent employed by the Bank?

Obvious from the above terms of Exhibit X is the fact that the said Stella Sati was clearly an agent of the Appellant and for any proved act of neglect or loss caused by her the

Appellant is clearly liable though it reserved the right of indemnity against the said Integrated Corporate Service Company Ltd that deployed her to the Appellant. In law therefore, the Appellant was clearly liable to the acts of the said Stella Sati while in its services and which had resulted into the loss to the Respondent, a third party and it is thus no defence at all for the Appellant to allege that she was merely deployed to it and thus not responsible to it, which was not even supported by any letter of her deployment to the Appellant.

My lords, on the facts in this case, and in the light of the applicable principles of law, it is very clear to me and I so find as rightly found by the Court below that Mrs Stella acted in her capacity as a staff or agent of the Appellant in the transaction with the Respondent on 11/9/2013 at the Banking hall of the Appellant?s Mubi Branch.
?
In whichever way one looks at the evidence before the Court below, it was very clear that it was right in its findings which is impeccable that the Appellant is liable to the Respondent for the act of Stella Sati, its staff and being her disclosed Principal and in the

course of whose business she transacted with the Respondent as proved by Exhibit A. In law such an impeccable finding must be allowed to stand and should not under whatsoever guise be disturbed as it is not in any way perverse. See Alhaji Ndayoko & Ors V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198. See also Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1247 @ p. 1307; Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p. 19; Owor V. Christopher (2010) All FWLR (Pt. 511) 962 @ p. 992.

On the issues discussed and resolved so far above, it is clear that in so far as it relates to the issues of whether or not Stella Sati was a staff or agent of the Appellant and whether or not the Appellant was liable to the Respondent for the acts of Stella Sati in the transaction of 11/9/2013 are issue which in my view do not raise any defence on the merit or indeed raise any triable issue as would have warranted the Court below to transfer the matter to the general cause list for further inquiry by way of a full trial.
?
There is now left the issue of allegation of fraud as alleged by the Appellant against Stella Sati as amounting whether or not to

a defence on the merit or raising any triable issue and whether the refusal of the Court below to transfer the suit to the general cause list on account of the allegation of fraud was wrong and amounted to a denial of fair hearing to the Appellant?

I have averted my mind sufficiently on the position of the law on allegation of fraud and the requirements of the law for particulars of fraud to be set out to confer any modicum of seriousness on an allegation of fraud to warrant further enquiry into it by the Court below. In other words, unless and until the allegation of fraud is expressly made and supported by its particulars it is a non starter as in law mere or bare or banal allegation of fraud, no matter how grave, is of no moment if it is not supported by the relevant particulars as required by law.
?
In both Exhibits C and E, which are acts of the Appellant in prompt and direct response to the demand of the Respondent through his Solicitor for the payment of N4, 000,000.00, the Appellant made not a single allegation of crime against the transaction of the Respondent at the Appellant?s Mubi Branch. All that the Appellant stated in those

Exhibits was that Stella Sati was no longer its staff and had acted in her personal capacity, while not even denying that the transaction indeed took place.

The Court below found, and quite rightly too in my finding, that the Appellant did not give any particulars of the alleged fraud as by way of stating the period(s) the alleged fraud were committed by Stella Sati and therefore the Appellant failed to make out any case of fraud in the said transaction between the Appellant and the Respondent. I hold that this finding is sound, impeccable and based squarely on the totality of the affidavit evidence of the parties as placed before it, which it painstakingly reviewed and arrived at these correct findings. I do not see any reason to disturb such correct findings of the Court below. See Highgrade Maritime Services Ltd V. First Bank of Nigeria Ltd (1991) 1 NWLR (Pt. 167) 290, where Wali JSC., had put it succinctly thus:
“It is trite law that where fraud is alleged it must be specifically pleaded and particulars of the fraud given to enable the party defending the allegation understand the case he is facing and prepare his defence.”
See

also United Africa Co Ltd V. Taylor (1936) 2 WACA 67; Alhaji Aminu Ishola V. Union Bank of Nigeria Ltd (2005) 6 NWLR (Pt. 922) 422; Wayne (W. Africa) Ltd V. Ekwunife (1989) 5 NWLR (Pt. 122) 422.
In Ezekiel Okoli V. Morecab Fin. (Nig) Ltd (2007) 14 NWLR (Pt. 1053) 37; Onu JSC., had aptly puts it thus:
?For an allegation of fraud to avail a Defendant in a suit placed on the undefended list, it must be on matters relevant to the case put up by the Plaintiff.?
See also Nishizawa Ltd V. Jethwani, (1984) 12 SC 234; John Holt (Liverpool Ltd) V. John Holt (1961) All NLR (Reprint) 492; Wellington V. Mutual Society (1880) AC 685 @ P. 704; Hajiya Maimuna Garba & Ors V. Alhaji Buba Pate Zaria (2005) 17 NWLR (Pt. 953) 55.

My lords, on the totality of the evidence as in the printed record, it is very clear and I so hold that the allegation of fraud as unsupported by any particulars was an afterthought merely intended to inaugurate a false defence with a view to postponing the judgment day. It was a sham aimed at denying the Respondent the judgment which he rightly deserved under the Summary judgment procedure as provided under Order 22

of the Adamawa State High Court Civil Procedure Rules 2013.

I cannot therefore, but agree completely with the apt and unassailable submission of learned counsel for the Respondent that the Appellant did not make out any allegation of fraud that could in the least be taken seriously having not stated any particulars of such alleged fraud as required by law and thus failed woefully to raise neither any defence on the merit nor any triable issue as required by Order 22(4) of the Adamawa State High Court Civil Procedure Rules 2013 to warrant the transfer of the Suit to the general cause list for trial.

In G.M.O Nworam and Sons Co Ltd V. Akputa (2010) All FWLR (Pt. 524) @ pp. 101 ? 102, the Supreme Court stated emphatically thus:<br< p=”” style=”font-size: 14px; line-height: 2;”

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?If a Defendant?s affidavit in support of the notice of intention to defend, where one is filed, or an affidavit to raise a preliminary objection as in the instant case, raises an issues where the Plaintiff will be required to explain certain matters with regard to his claim or where the affidavit throws a doubt on the Plaintiff?s claim, such brings the parties within the concept of ?joining issues?. In such a situation, a triable issue comes into existence. Whenever a bona-fide issue or a triable issue comes into existence, the case ought to be entered in the general cause list. The Court has a duty to ensure fair hearing even in cases under the undefended list procedure?
In the circumstances therefore, I have no difficulty resolving the first issue for determination in the negative against the Appellant in favour of the Respondent and hold firmly that the Court below was perfectly right refusing the Appellant to come in to defend the Suit on the merit having not made out any defence or triable issue on the strength of its counter affidavit and documentary Exhibits placed before it.
ISSUE NO. TWO:<br< p=””

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?Whether the trial Court was right in entering judgment in favour of the Respondent in the circumstances of the Case.?

It was submitted for the Appellant that it effectively complied with Order 22 Rule 4 of the Adamawa State High Court Civil Procedure Rules 2013 as its counter affidavit made out a good defence and raised triable issues before the lower Court and contended that the Court below was not expected at that stage to determine whether there was an established defence as its only duty was to look at issues raised by the Defendant to determine whether there exist triable issues. Counsel relied on Nnabude BV. G.N.G. (W/A) Ltd (2012) All FWLR (pt. 619) @ p. 1198, where it was held that:
?In determining whether or not the Appellant had put up a good defence to the action filed against him, it did not behove upon a trial judge to consider at that stage whether the defence had actually been established. At that crucial stage of the trial, what was required was simply to look at the facts deposed in a counter-Affidavit, where applicable and determine prima-facie if it affords a defense to the action.?

It was further

submitted that the Appellant who filed a counter affidavit and had called on the Court below to allow it defend the claims of the Respondent but was not so allowed and contended that the grant of summary judgment in the circumstances against the Appellant was an infringement of the Appellant?s right of fair hearing as enshrined in Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 as (amended).

On the other hand, it was submitted for the Respondent that it is a well established principle of Law that the rules of Court providing for a case to be placed on the Undefended List is deliberately designed to allow for a quick dispensation of justice to avoid unnecessary clogging of the legal system with proceedings which could otherwise have been easily and quickly disposed of and contended that a case should not be transferred from undefended list to the general cause list merely at the whims and caprices of a Defendant who merely find in the words ?fair hearing? a convenient as well as handy mantra. Counsel relied on Aso Motel Kaduna Ltd V. Deyemo (supra) @ Pp. 121 ? 122, where the Court explained the

relationship between the undefended list procedure and the right to fair hearing thus:
?This Court categorically stated the rationale for undefended list procedure in the case of Mat Holdings Ltd V. U.B.A Plc. (2003) 2 NWLR (Pt. 803) 71 @ P. 90. The Court states: ?The rules of Court providing for cases to be placed under the undefended list are deliberately designed to allow for quick dispensation of justice to avoid unnecessarily clogging our legal system with proceedings which could otherwise have been easily and quickly disposed of. Although the need for fair hearing should not be sacrificed on the altar of expediency, the procedure should not be frustrated or thwarted by fanciful or general defences directed at frustrating the Plaintiff out of judgment he well deserves. A case should not be transferred from undefended list to the general cause list merely on the whims and caprices of a Defendant who merely finds the words ?fair hearing? a convenient as well as handy slogan.?
In J.O.E. Co. Ltd V. Skye Bank Plc (2009) 6 NWLR (Pt. 1138) @ P. 518, the
Supreme Court threw further light on this salient issue thus:

“The principle of fair hearing is not only fundamental to adjudication but also a constitutional requirement which cannot be legally wished away. It is a fundamental right of universal application. Thus, in the instant case, the submission of the learned counsel for the Respondent that the principles of fair hearing, particularly the rule of audi alteram partem, has no application to proceedings under the undefended list is strange. In fact, Order 23 of the High Court of Ondo State (Civil Procedure) Rules 1987 does not take away the right of fair hearing of any party to the undefended list procedure. Rather, it confers equal right to fair hearing to the parties. In particular, Order 23(3) (1) confers express right to file a notice of intention to defend the action placed under the undefended list by virtue of Rule 1 Order 23 , upon service of the processes on him and, the Court, after going through the affidavit, may grant him leave to defend the action and remove the Suit from the undefended list to the genera cause list to be dealt with accordingly. It is only when the Defendant/Respondent fails or neglect to avail himself of the opportunity offered

him by Order 23(3)(1) that the Court is empowered by Order 23(4) to enter judgment in the Suit, in which case, it is obvious that truly the Defendant/Respondent has no defence to the action of the Plaintiff. Thus failure or neglect of a Defendant/Respondent to avail himself of the opportunity to be heard is not a denial of the right to fair hearing.?

The Court below having found that the Appellant did not make out any allegation of fraud and there being no defence or triable issue, held that the only option left for it was to proceed to enter judgment under the Summary Judgment procedure against the Appellant in favour of the Respondent. See page 128 of the Record.

Now, it was the contention of the Appellant that entering judgment under the summary judgment procedure without letting in the Appellant to defend the suit amounted to a denial of fair hearing. In its judgment the Court below answered this contention in the negative in very categorical terms by holding that the summary judgment procedure does not constitute a breach of the fair hearing provisions of the Constitution of Nigeria 1999 as amended.
?
In the second issue under

consideration, it was the contention of the Appellant that on the totality of the evidence placed before the Court below by the parties, this was not a proper case for it to have proceeded to enter judgment for the Respondent without letting in the Appellant to defend the suit on the merit and that by so doing it breached the right of the Appellant to fair hearing as guaranteed by Section 36(1) of the Constitution of Nigeria 1999 as amended.
?
A calm but critical look at the provisions of Order 22 of the Adamawa State High
Court Civil Procedure Rules 2013, will readily reveal the duties imposed on each of the parties and indeed the Court below when dealing with matters placed under the summary judgment procedure provisions of the Rules of the Court below. It is the duty of the Plaintiff through his affidavit evidence in support of his pleading and the relevant documentary Exhibits if any that in his belief the Defendant has no defence to his claims against him. See Order 22 (1) of the said Rules of Court 2013. Upon service, the Defendant who believes that he has a good defence to the claim of the Plaintiff to file his pleadings together with his

counter affidavit and documentary Exhibits if any joining issues with the Plaintiff and disclosing facts amounting to defence on the merit or raising triable issue. See Order 22 (4) of the said Rules of Court 2013.

At the hearing of the Motion by the Plaintiff seeking summary judgment on his claim(s) against the Defendant, the duty of the Court is to carefully examine and critically scrutinize the totality of the affidavit and documentary evidence if any placed before it to see if the Defendant has disclosed any defence on the merit or raises any triable issue. Once the Court determines that the Defendant has disclosed a defence or raised triable issue, the only duty left is to let in the Defendant to defend the claim on the merit by transferring it to the general cause list for full trial on the merit. However, where the Court finds that the Defendant has neither disclosed any defence on the merit nor raised any triable issue, there is no other option left for the Court than to proceed to enter judgment against the Defendant in favour of the Plaintiff as per his claim(s).
?
In the proceedings under review as can be found on the printed record, it is

clear and I so hold that the Court below was perfectly in order in its conduct of the summary judgment procedure and having found that the Appellant did not disclose any defence on the merit or indeed raise any triable issue, was right to have proceeded to enter judgment in favour of the Respondent against the Appellant. In law, the Court below had no option under the relevant Rules of that Court than to proceed to enter judgment against the Appellant as it rightly did in the judgment appealed against in this appeal.

In finding the Appellant liable to the Respondent as rightly found by the Court below, it may well be pertinent to state that it is now settled law, that banks are always liable, in a situation where its staff or agent collected money from a customer on its behalf during or after close of the Bank business like in the instant appeal. Such were facts and circumstances in the case of ACB Ltd Calabar V. Agbanyina (Supra) @ p. 13 where the Court held the Bank liable thus:
?At the trial the Respondent gave evidence that he had deposited the two sums in issue by handing them to Mr Onwuteaka, the then manager of the Appellant branch at

Calabar. He said he did this on the verbal instructions of the manager both deposit having been made after public banking hours, and indeed, only a short while before the bank closed altogether as 5pm. On each occasion his paying-inbook was returned to him by the manager, apparently duly stamped by means of rubber stamp giving the date of the payment-in-marked ?cashier No. 1? and bearing what appear to be initials although the initials were different in the two cases (Exhibits B and C)….. On the evidence before him, the learned judge was right in holding the banks liable?,
In Aso Motel Kaduna Ltd V. Deyemo (supra) @ pp. 121 ? 122, the Court in considering the provision of Order 22 Rule 3 of the Kaduna State High Court (Civil) Procedure) rules which is in pari materia with the provision of Order 22 rule 3 of the Adamawa State High Court (Civil Procedure) Rules, 2013, had reasoned thus:
?The contention of the Appellant that he was not given fair hearing does not hold water as the only duty expected of the learned trial judge was not to afford the Appellant?s counsel the opportunity to address the Court. The only

business of the day left after hearing the motion is to proceed to give judgment if there is no defence. If there is however a defence, the case should be transferred to the general cause list for hearing and determination.?
See also Robert C. Okafor & Ors V. AG and Commissioner for Justice Anambra State (1991) 6 NWLR (PT. 200) 659.

My lords, having held firmly that the Court below was right in entering judgment against the Appellant in favour of the Respondent, the only issue worthy of further consideration, albeit briefly, is whether the entering of judgment against the Appellant amounted to a denial of the right to fair hearing of the Appellant as guaranteed by Section 36(1) of the Constitution of Nigeria as amended as contended by the Appellant? The true test of fair hearing is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case.
See Mohammed Oladapo Ojengbede V. M.O. Esan & Anor (2001) 18 NWLR (Pt. 746) 771.

There can be no doubt that fair hearing is in most cases synonymous with natural justice, an issue which clearly is at the threshold of our

legal system, once there has been a denial of fair hearing as guaranteed under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended, the whole proceedings automatically become vitiated. A denial of fair hearing can ensure from the conduct of the Court in the hearing of a case. See Ofapo V. Sonmonu (1987) 2 NWLR (Pt. 58) 587; Wilson V. AG of Bendel State (1985) 1 NWLR (Pt. 4) 572. See also A. U. Amadi V. Thomas Aplin & Co Ltd (1972) All NLR 413.

Having averted my mind to the succinct provisions of Section 36 (1) of the Constitution 1999 as amended and Order 22 of the Adamawa State High Court Civil Procedure Rules 2013 in the light of the evidence of the parties as in the printed record and the correct finding that the Appellant did not disclose any defence on the merit or raised any triable issue, I hold that the Appellant who as allowed by the Rules of the Court below filed its Statement of Defence, Statement on Oath of its sole witness one Salisu Mahmood, list of documents, counter affidavit and written address of its counsel in opposition to the application for summary judgment by the Respondent and was duly heard at

the hearing of the motion on 25/11/2014 at pages 107 ? 108 of the record, leading to the judgment of the Court below was not in any way denied of its right to fair hearing as it was duly heard as allowed by law under the summary judgment procedure of the Rules of the said Court 2013. See pages 47 ? 62; 63 ? 72; 73 ? 93 of the record.

In my finding therefore, the Appellant was afforded equal opportunity with the Respondent to be heard and they were both equally heard before the judgment of the Court below was delivered in favour of the Respondent against the Appellant. It is never the law and may that day never come when a party who loses a case would by that fact alone without more allege and sustain an allegation of denial of fair hearing just because he lost a case in Court. This seems to me to be the only hue and cry of the Appellant in this appeal against the judgment of the Court below merely because it went against it.
?
An allegation of denial of the right to fair hearing, a constitutionally guaranteed right of the citizen, is a very grave allegation whenever made and therefore must not be made carelessly or

lackadaisically or lightly against the Court merely to cause distraction from the real issues in contention between the parties before the Court.
This is so because in law once an allegation of denial of fair hearing is made out against any proceedings and or judgment, it renders it a nullity, regardless of the merit or otherwise of the cases of the parties. I hold that the Appellant’s right to fair hearing was scrupulously observed and accorded its rightful place by the Court below and thus the complaint of denial of right to fair hearing against the Court below by the Appellant was highly misconceived and lacking in merit. See Robert C. Okafor & Ors V. AG and Commissioner for Justice Anambra State (1991) 6 NWLR (PT. 200) 659.

In the circumstances therefore, I have no difficulty resolving the second issue for determination in the positive in favour of the Respondent against the Appellant and hold firmly that the Court below was perfectly right in entering judgment against the Appellant in favour of the Respondent on the facts, evidence and circumstances of this case as in the printed record and in line with the applicable principles of

law.

Having resolved both issues for determination in favour of the Respondent against the Appellant, it follows therefore that this appeal lacks merit and is thus liable to be dismissed. I hereby so dismiss it.

In the result, the judgment of the High Court of Adamawa State in Suit No:ADSY/83/2014: Yunana Solomon V. Guaranty Trust Bank Plc, delivered on 13/7/2015 by Ambrose Mamadi J., is hereby affirmed.
There shall be cost of N100, 000.00 against the Appellant in favour of the Respondent.

JUMMAI HANNATU SANKEY, J.C.A.:
I read before now the Judgment just delivered by my learned brother, Georgewill, JCA. I am in agreement with him in his reasoning and conclusion, which I adopt as mine.
?
The Appellant is a fiduciary to the Respondent. It owes the Respondent a duty to exercise a high standard of care in the managing of the Respondent?s money. Therefore, by causing the Respondent the loss of the sum of N4,000,000.00 through its agent, Mrs. Stella Sati, the Appellant certainly breached the fiduciary relationship between them, to which the Respondent was entitled to compensation by way of damages, both

special and general. See UBN Plc v. Chimaeze (2014) LPELR-22699 (SC).
In the circumstance, I join in dismissing the Appeal for want of merit. I abide by the order made as to costs.

SAIDU TANKO HUSAINI, J.C.A.:I agree.

Appearances

Miss Rashida BabayoFor Appellant

AND

Hassan G. Maidawa, Esq.For Respondent