ABCENT MULTIPURPOSE (NIG) LTD & ANOR v. MTN & ANOR (2021)

ABCENT MULTIPURPOSE (NIG) LTD & ANOR v. MTN & ANOR

(2021)LCN/14980(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, January 13, 2021

CA/A/624/2019

RATIO

EVIDENCE: STANDARD OF PROOF OF MATTERS IN CIVIL CASES

In order to resolve the issue, as in proof of a matter in civil cases, preponderance of evidence/balance of probabilities. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

CONTRACT: LOCUS STANDI IN RESPECT OF ANY BREACH OF AGREEMENT

A party to a contract or an agreement has the locus standi to sue in respect of any breach of his right in the agreement or contract or for a refusal by the other party to the agreement to discharge his obligations under the agreement or contract. See the cases of OWODUNNI V. REGISTERED TRUSTEES OF CCC & ORS 2000 6 SCNJ 399 and BASINCO MOTORS LTD. V. WOERMANN LINE & ANOR 2009 13 NWLR PT. 1159 149 and EMORI V. ESUKU 2012 LPELR 9797 CA. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

PLEADINGS: WHETHER PLEADINGS WILL BE DEFEATED BY MISJOINDER OR NON-JOINDER

It is trite and as its been long settled by plethora of cases that no pleadings shall be defeated by reason of mis joinder or non joinder of parties and the Court is expected to treat each case on its merit in respect of the rights of the parties. As stated by the apex Court, no mis joinder or non joinder will defeat a suit. See the cases of CHIEF ONWUKA KALU V. CHIEF ODILI-IN RE: CHIEF NWOJA & 2 ORS 1992 SCNJ PT. 1 76, NWEKE V. NWEKE 2014 LPELR-CA/E/93/2013, A-G RIVERS STATE V. AKWA IBOM STATE 2011 29 WRN 1 and WAHAB A. SAPO & ANOR. V. ALHAJA BINTU SUNMONU 2010 LPELR-SC 314/2001. PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

EVIDENCE: PRIMARY FUNCTION OF THE TRIAL COURT

The trial Court has the primary function of evaluating and ascribing probative value to the evidence before it PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

Before Our Lordships:

Peter Olabisi Ige 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

1. ABCENT MULTIPURPOSE NIGERIA LTD 2. MR. INNOCENT ABUTU (DOING BUSINESS IN THE STYLE OF INNOGLOBA CAFE SERVICES)APPELANT(S)

And

1. MTN NIGERIA COMMUNICATIONS LTD 2. DAMIANO PHONE WORLD LTDRESPONDENT(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 28th May, 2019 by Hon. Justice Peter Affen, wherein the entire case of the Appellants’ (the Plaintiffs at the Court below) was dismissed.

At the Court below, the Appellants sought the following reliefs against the Respondents (the Defendants there at):
a. A declaration that Defendants’ actions, conducts and approaches adopted in the swap of the 2nd Plaintiff’s MTN mobile line to wit: 08035926072 in favour of a third party without recourse to the 2nd Plaintiff or his knowledge and authorization to that effect is unlawful, unconstitutional and constitutes breach of the 2nd Plaintiff’s rights to privacy, association and speech guaranteed by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as well as a breach of implied terms of contract the 2nd Plaintiff has with the Defendant(s).
b. A declaration that Defendants’ actions, conducts and approaches adopted in the swap of the 2nd Plaintiff’s MTN mobile line to wit:

08035926072 in favour of a third party without recourse to the 2nd Plaintiff or his knowledge and authorization to that effect leading to the un-authorized withdrawal of the Plaintiffs’ monies to the tune of Four Hundred and Eighteen Thousand Eight Hundred and Forty Naira (N418,840.00) in the 2nd Plaintiff’s Bank Account No. 3112894220 maintained and operated in First Bank of Nigeria PLC is fraudulent, mischievous and grossly illegal.
c. A declaration that Defendants’ actions, conducts and approaches adopted in the swap of the 2nd Plaintiff’s MTN mobile line to wit: 08035926072 in favour of a third party without recourse to the necessity of obtaining prior consent and or authorization of the Plaintiffs leading to the loss of Four Hundred and Eighteen Thousand Eight Hundred and Forty (N418,840.00) in favour of the third party beneficiary thereof.
d. General Damages of Two Hundred Million (N200,000,000) Naira only in favour of the Claimants against the Defendants.
e. Special Damages of Four Hundred and Eighteen Thousand Eight Hundred and Forty (N418,840.00) lost by the Plaintiffs due to the illegal swap of the 1st (sic) Plaintiff’s MTN mobile

line which line is used by both Plaintiffs to carry on among other services café business services and Remita online payments for the Plaintiffs’ customers and clients.
f. An order of injunction restraining the Defendants, their agent, servants and privies or howsoever described from further unlawful interference with or swap of the 2nd Plaintiff’s MTN mobile line to wit: 08035926072 in favour of any person whatsoever and howsoever described without express written permission of the 2nd Plaintiff first sought and obtained.
g. 10% interest annually on the judgment sum (if awarded) pursuant to Order 39 Rule 7 of the Rules of this Court.
h. Costs of action and prosecution of the instant case orchestrated wholly by the unlawful and illegal actions of Defendants.
i. Any other order necessarily consequential to the reliefs above sought.

The Court found against all the reliefs sought and as earlier stated, the matter in its entirety was dismissed.
Dissatisfied with the decision, the Appellants filed their Notice of Appeal on 1st of July, 2019 containing Ten (10) Grounds of appeal and seek the following reliefs:

To allow the appeal and set aside the judgment of the trial Court in suit No. FCT/HC/CV/3311/2017 delivered on 28/5/2019.
b. To enter judgment for the Appellants or the 2nd Appellant as found entitled thereto.
c. Any other relief(s) the Court finds necessary in the circumstances.

A brief gist of what culminated into this appeal as garnered from the printed record before this Court is that, the 2nd Appellant’s MTN mobile line was swapped in favour of an unknown third party on 29/4/2017 without his authorization. The Appellants therefore, claimed that the sum of N418,840.00 was withdrawn from the First Bank account of the 2nd Appellant as a result of the swap by unknown persons and sought damages of N200,000,000.

The Respondents deny the claim that swapping of a SIM could allow fraudulent withdrawal from the 2nd Appellant’s account, that it could only be possible through the 2nd Appellant revealing his online password, token numbers and ATM pin to a third party. The matter went to trial and the Court in its wisdom found against the Appellants.

In accordance with the rules of this Court, parties filed and exchanged their briefs of argument. Mr. Jude Ugwuanyi Esq. adopted the Appellants’ brief which was filed 29th July, 2019, settled by him and the Appellants’ response to the brief of the 1st and 2nd Respondents, respectively on 14th August, 2019 and 5th September, 2019. He urged that the appeal be allowed. Mr. Osigwe Esq. adopted the 1st Respondent’s brief of 6th August, 2019, settled by him and urged that the appeal be dismissed. Mr. C. l. Mberi Esq. adopted the 2nd Respondent’s brief, filed on 30th August, 2019, which was settled by him. He urged that the appeal be dismissed.

ISSUES SUBMITTED BY THE PARTIES FOR DETERMINATION
The Four (4) Issues by the Appellants were as follows:
a. Whether by the pleadings and evidence before the Court, the Appellants sufficiently proved with particulars the Respondents’ acts of negligence in the swap of the 2nd Appellant’s MTN SIM No. 08035926072 with attendant/consequential injuries/damage suffered as a result (Grounds 1 and 6).
b. Whether the Appellants proved that the loss of the sum of N418,840.00 from the 2nd Appellant’s Account No. 3112894220 maintained in First Bank PLC from the 29/4/2019 to the 2/5/2019 was consequent upon the unlawful

swap of the 2nd Appellant’s MTN No. 08035926072 used for and connected to the said account number (Grounds 2, 3, 4, 5 and 10).
c. Whether the failure to consider other reliefs/claims sought before the Court (other than the loss of N418,840.00 claimed as special damages on the purport that same was not proved to be a consequence of the unlawful swap) did not occasion to the Appellants gross miscarriage of justice in the circumstances (Ground 7).
d. Whether the 1st Appellant was improperly joined in the suit and if yes, whether the wrong joinder could defeat the case (Grounds 8 and 9).

The 1st Respondent submitted the following Four (4) Issues:
1. Was the learned trial judge not right in his decision that Appellants’ action was anchored on fraud and mischief and that negligence was alluded to in passing without any particulars.
2. Did Appellants lead any credible evidence to show the loss of N418,480.00 was consequent upon the SIM swap carried out on 2nd Appellant’s line.
3. Did the learned trial judge fail to consider all reliefs/claims sought by Appellants in the suit.
4. Was the learned trial judge not right when he

held that 1st Appellant was a stranger to the contract between 2nd Appellant and 1st Respondent and could not maintain an action for performance or non-performance of the obligations incidental to the said contractual relationship.

The 2nd Respondent submitted Two (2) Issues thus:
i. Whether or not the Court below rightly held that the Appellants’ claim failed and accordingly dismissed the suit.
ii. Whether or not the Court below rightly refused to grant other reliefs/claims sought by the Appellants.

Having very carefully perused the issues submitted, as empowered, I shall formulate a single issue for a just and fair determination of this appeal as hereunder stated. See the cases ofLATUNDE V. BELLO LAJINFIN 1989 5 SC 59, UNITY BANK PLC. V. EDWARD BOUARI 2008 7 NWLR PT. 1086 372 and OKORO V.THE STATE 1988 12 SC 191.

Whether or not the Court below was right given the evidence placed before it, to dismiss the entire case of the Appellants.

PRELIMINARY OBJECTION BY THE 2ND RESPONDENT
Before proceeding with the main appeal, the 2nd Respondent by a motion on notice filed 30th August, 2019 seeks an order striking out Grounds 8 and 9 of the Appellants’ Notice of Appeal.

Mr. Mbaeri, learned Counsel for the 2nd Respondent challenged the competence of Grounds 8 and 9 of the Appellants’ Notice of Appeal as well as issue 4 in the Appellants’ brief of argument. He contended that, the two grounds related to an obiter dictum, a passing remark in the judgment, whereas, a ground of appeal ought to relate to the ratio decidendi as an appeal does not lie against an obiter dictum and in support cited the cases of ONAH V. SCHLUMBERGER NIG. LTD. 2018 6-7 SC PT. III, IKYERNUM V. IORKUMBUR 2002 11 NWLR PT. 777 52 and MALLAM JIMOH ATANDA V. COMMISSIONER FOR LANDS AND HOUSING KWARA STATE 2017 5 SC PT. III 58. He noted that the Appellants admitted that the said grounds were in respect of the trial Court’s passing remark, an obiter. He urged in conclusion that the 2nd Respondent’s objection be upheld.

Mr. Jude Ugwuanyi Esq. for the Appellants, in response, admitted that the said grounds are premised on the obiter dictum of the trial Court which influenced the substance of the judgment and an early striking out of same may lead to some irredeemable irregularity and cited in support the

case of XTOUDOS SERVICES NG. LTD & ANOR. V. TAISEI WA LTD. & ANOR 2006 LPELR-3504 SC. He conceded the 2nd Respondent’s argument in respect of grounds 8 and 9 and Issue 4.

RESOLUTION
Having carefully considered the submissions by the learned Counsel of the 2nd Respondent and that of the Appellants on the competence of Grounds 8 and 9 of the Appellants’ Notice of Appeal and Issue 4 distilled there from, for economy of time and resources, and to be able to spend time judiciously on the main appeal, I hereby sustain the objection raised by the 2nd Respondent. In consequence, Grounds 8 and 9 of the Appellants’ Notice of Appeal and issue 4 in the Appellants’ brief of argument are hereby struck out for incompetence. The way is now paved for consideration of the substantive appeal and therefore, I proceed in that regard.

SUBMISSION ON BEHALF OF THE APPELLANTS
The learned Counsel submitted that, the Appellants proved the ingredients of negligence and were therefore entitled to judgment at the Court below. That, it suffices where the several acts of negligence and injuries suffered were severally and clearly pleaded even though not

tagged, particulars of negligence and none was misled and cited the case of A.G. LEVENTIS NIG. LTD. V. CHIEF AKPU 2007 17 NWLR PT. 1063 416. He argued that, the unlawful swap of 2nd Appellant’s SIM card had adverse and multifaceted effects and in support cited the case of MTN NIG. COMMUNICATIONS LTD. V. CHINEDU 2018 LPELR-44621. He submitted that the Court was wrong to have held that it was mere allusion to negligence by the Appellants as miscarriage of justice was occasioned thereby on the Appellants.

He asserted that the Appellants proved that the swap of the 2nd Appellant’ SIM card caused the loss of the sum of N418,840.00 from his account with the First Bank from 29/4/2019 to 2/5/2019. That, he used the line for his remita business and the SIM card was connected to his First Bank account, the pin numbers and secret codes were saved in the SIM card and same backed up and there had not been any loss of money from the said account until after the swap. He contended that after the swap, all information on the old SIM card was downloaded into the new SIM without much ado, hence the fraudsters transacted on his account with ease. He argued that no expert

was called to challenge Exhibit P 19, that all information in the old SIM card did not automatically go to the new SIM card. He submitted that the 1st Respondent swapped the 2nd Appellant’s SIM on behalf of the 2nd Respondent, being its agent.

Further the learned Appellants’ Counsel submitted that the Court erred to have ascribed probative value to DW1’s evidence which was self defeating and cited in support the case of NEKA LTD. V. ACB LTD 2004 1 SCNJ 193. He asserted that the Respondents were withholding evidence as in Section 169 (d) of the Evidence Act, 2011 and in support cited the cases of JALLCO LTD & ANOR. V. OWONIBOYS TECHNICAL SERVICES LTD. 1995 LPELR-1591. That, the irresistible conclusion is that the unlawful swap of the Appellant’s SIM to fraudsters led to the loss of the money and no other and referred the Court to Exhibit P19 and the case of MTN NIG. COMMUNICATIONS LTD. V. CHINEDU 2018 LPELR- 44621. He urged that the Court should take judicial notice of losses from SIM swap due to the level of its notoriety and to accept circumstantial evidence because of the difficulty to provide detailed account of the operations of fraudsters.

In support, he cited the case of ODOGWU V. STATE 2009 LPELR-8506. Therefore, there was occasioned miscarriage of justice on the Appellant as Exhibit P19 was left unevaluated he added.

He argued that the Appellants proved other reliefs and claims in their case before the Court which included breach of contract, negligence and fundamental human rights infractions, Sections 37, 39 and 40 of the 1999 Constitution, consequential reliefs of general and special damages, injunction, post judgment interest and the omnibus prayer. That, the sum illegally withdrawn from the 2nd Appellant’s account was special damage not negligence, which were specifically claimed and strictly proved and cited the case of KOPEK CONSTRUCTION CO. LTD. V. EKISOLA 2010 LPELR-1703. Further that, the Court having found that the Respondents owed the 2nd Appellant duty of care and there was breach of the contract by swapping the SIM, reliefs a, b, d, e, f, g, h of the amended statement ought to have been granted. General damages naturally flow from the wrongs committed against the Appellants and in support cited the case of SAHALATU SHAZALI V. THE STATE 1988 12 SC PT. II 58,

BFI GROUP CORPORATION V. BPE 2012 LPELR -9339 and that the post judgment interest claim is provided by the Rules of the Court.

As regards the joinder of the 1st Appellant, the learned Counsel submitted that it was properly joined as it pleaded sharing the SIM with the 2nd Appellant for their joint business which the Respondents did not deny and the money from the joint business was kept in the said 2nd Appellant’s account. That, the joinder was necessary for it to be bound by the outcome of the matter to prevent multiplicity of suits. In support he cited the case of ADEFARASIN V. DAYEKH 2006 LPELR-7678 CA. He argued that even where there is no contractual relationship between the Respondents and the 1st Appellant, the tortuous acts of the Respondents affected the 1st Appellant’s businesses as it lost money and therefore it joined force with the 2nd Appellant against the Respondents. Further that, if misjoinder were found, the Court was empowered to strike out the name of the 1st Appellant and enter judgment for the 2nd Appellant without amending the pleadings and the 2nd Appellant’s rights should not be affected in any way. He referred the

Court to Order 13 Rule 1 of the FCT High Court Rules and the cases of ADEFARASIN V. DAYEKH supra, USUAH V. G.O.C. NIG. LTD. 2012 LPELR-7913 CA and CROSS RIVER STATE NEWSPAPER CORP. V. ONI 1995 1 NWLR 371 270. 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. Mazi Osigwe, learned Counsel for the 1st Respondent submitted that, the Appellants failed to plead the particulars of negligence, even though they claimed the 1st Respondent owed and breached its duty of care to ensure that the 2nd Appellants’ right over the SIM card was protected from third parties. Their averments were more in violation of the terms of the contract between the parties, they had nothing to do with negligence and can only be one and not both and cited in support the case of I.M.N.L. V. NWACHUKWU 2004 13 NWLR PT. 891 543. That, the case of MTN V. CHINEDU supra referred to by the Appellants is misplaced as negligence was pleaded therein and not merely alluded to. He submitted that the Appellants failed to plead negligence with particulars and prove same with credible evidence against the Respondents.

He argued that the Appellants failed to show that the Respondents breached the terms of the contract and the Court was right in holding that the withdrawals from the 2nd Appellant’s account were not sufficiently linked to the SIM swap. That, a breach of contractual duty must be dealt with according to the law of contract and not regarded as negligence and cited the case of I.M.N.L. V. NWACHUKWU supra in support. He argued that, the Appellants’ allegation that money was fraudulently withdrawn from the 2nd Appellant’s account is one of crime and as expected in criminal matters, was not proved beyond reasonable doubt, notwithstanding that their case is civil. In support he cited the cases of NWOBODO V. ONOH 1984 1 SCNLR 121, ABIBATU FOLAMI V. FLORACOLE 1990 2 NWLR PT. 133 445 and JIBRIL V. MILITARY ADMINISTRATOR, KWARA STATE & ORS. 2007 3 NWLR PT. 1021 357. He further argued that the name of a bank’s customer, account number, type of account, user name as well as password are never stored on a new SIM or the Respondent’s mobile telephone or data network. That, Exhibit P19 which was made five weeks after the alleged wrongful withdrawal cannot be used and P10

lacked probative value being a mere note taken by the Appellants’ Counsel who did not testify in the case. That, offers made in the course of settling a matter are not admissible in evidence and cited in support the case of ASHIBUOGWU V. A-G BENDEL STATE & ANOR. 1988 N.S.C.C. PT. 1439.

The learned Counsel asserted that the Court duly considered all the reliefs/claims of the Appellants. The Court, he submitted, was right in holding that the Appellants were bound by their pleadings, the claims they approached the Court with and that the Court had no jurisdiction to amend or alter their claims or reliefs suo motu so as to grant judicial remedy to the 2nd Appellant alone. Further that, the Appellants as joint Claimants must swim or sink together.
The issue of the joinder of the 1st Appellant which is predicated on Ground 8 of the Notice of Appeal is incompetent being one on an obiter dictum he submitted and cited in support the case of KAYODE BABARINDE & ORS V. THE STATE 2014 3 NWLR PT. 1395 568. That, without conceding the point, the Appellants failed to clarify how much of the sum being claimed is owned by each and therefore the Court would

not strike out 1st Appellant’s name to grant the relief claimed to the 2nd Appellant as the learned Counsel argued. The finding of the Court that the 1st Appellant was a stranger since he had no contractual relationship with the 1st Respondent, or that the latter have with the two Appellants, he submitted, was correct. Further that, the Appellants failed to prove that the 1st Appellant’s case fell within the few exceptions to the privity of contract principle such as trust, agency and where the contact was made for a third party’s benefit. In conclusion, he urged that the appeal be dismissed.

The learned Counsel for the 2nd Respondent, Mr. C. Mbaeri Esq. submitted that, the dismissal of the Appellants’ suit was their failure to provide credible evidence in proof of the reliefs sought on the SIM swap and that Exhibit 19 was not the missing link in their case. That, the general definition of SIM swap in Exhibit 19 was not exhaustive, it did not specify the procedure for retrieving data stored on a swapped SIM card and therefore, failed to explain how the phantom third party accessed 2nd Appellant’s secret code and 5 digit personal identification number, in

order to make withdrawals from his bank account. That, it was not admissible in law being documentary hearsay whether or not it was objected to and referred to Sections 37 (b) and 38 of the Evidence Act as amended as well as the case of AINA V. STATE 2018 LPELR- 45566 CA. Therefore, the Court disregarded it as unhelpful. He submitted that, the DW1 under cross-examination clarified that a newly swapped SIM needed the customer’s user name and PIN. Exhibit P10, the minutes and attendance list at the peace meeting of the parties were made in good faith, the offer by 1st Respondent to pay the Appellants by air times, half of the money drawn and for three months as well that by the CEO of the 2nd Respondent, the monetary offer of N200,000.00 which were rejected by the 2nd Appellant. He submitted that, they were not admission of liability by the Respondents in spite of the general position of the law that allows settlement and compromise out of Court without prejudice. In support he cited the cases of FIRST AMALGAMATED BUILDING SOCIETY LTD. & ANOR V. IBIYEYE 2008 14 NWLR PT. 1107 375, N.B.N. V. GUTHRIE NIG. LTD. 1993 3 NWLR PT. 284 643, ABDULKARIM V. INCAR LTD.

1992 7 NWLR PT. 251 1, ASHAKACEM PLC. V. ASHARATUL MUBASHURUN INVESTMENT LTD. 2016 LPELR 40196 CA and FAWEHINMI V. NIGERIAN BAR ASSOCIATION (NO. 2) 1989 2 NWLR PT. 105 558 as well as Section 196 of the Evidence Act. Therefore, Exhibit P10, being inadmissible, makes it immaterial that the Respondents objected to it or not.

The learned Counsel submitted that the Court rightly refused to grant other reliefs and claims by the Appellants as the principal relief failed there was nothing on which to grant the other reliefs and no liability was found on a balance of probabilities as regards the swapping of the SIM card and the loss of money by the 2nd Appellant. In support he cited the case of ILORI V. ISHOLA 2018 LPELR-44063. Further that, where the Claimant fails in the principal claims, Reliefs (a), (b) and (c), he cannot get the ancillary ones, Reliefs (d), (e), (f) and (g). In conclusion, he urged that the Appellants’ appeal be dismissed for lacking in merit.

THE POSITION OF THE COURT
I have very carefully read through the processes placed before this Court by the parties in respect of this appeal, particularly the briefs of the parties for and

against this appeal and having very carefully so done, I shall proceed in the determination of this appeal with the sole issue, by considering the findings of the Court below. For ease of reference, the issue is hereunder reproduced.
SOLE ISSUE
Whether or not the Court below was right given the evidence placed before it, to dismiss the entire case of the Appellants.

Given the facts which culminated into the Appellants’ case at the Court below and the Judgment being appealed against, as afore stated, one finds the question posed by the Court in its evaluation of the evidence before it, necessary, particularly in the face of reliefs (b), (c) and (f) as follows:
“…whether the loss or damage allegedly suffered by the Appellants on the basis of which they seek the reliefs sought in these proceedings is attributable to the Respondents’ breach of duty in swapping the 2nd Appellant’s SIM card in favor of a 3rd party.” See page 559 of the Record.

The Court found and correctly in my view and humbly that between the 1st and 2nd Respondents, there is an agency relationship, which needed no written formality for appointment. That, the

2nd Respondent acted as the agent of the 1st Respondent in dealing with the SIM card of the 2nd Appellant. On page 555 of the Record it stated thus:
“…in the absence of any written agreement or other instrument showing the exact nature and scope of the relationship between the 1st and 2nd Defendants inter se, I entertain no reluctance whatsoever in affirming my agreement with the submissions of the learned counsel for the Plaintiffs that the 2nd Defendant acted as an agent of the 1st Defendant in carrying out the SIM swap that has given rise to this litigation.”

The 2nd Respondent had access from the 1st Respondent to information regarding the 2nd Appellant on the use of the 1st Respondent’s network. Between the 1st Respondent and the 2nd Appellant, there is a contractual relationship for provision of service for telephone mobile line. Though, the 2nd Appellant claimed the line was being used together with the 1st Appellant for their café and Remita businesses which is outside the knowledge of the 1st Respondent from the Record. As the Court correctly stated, there was no relationship of network service provider between the 1st

Appellant and the 1st Respondent. The SIM card was registered for and with the details of the 2nd Appellant alone. The argument by the Appellants that they both used the registered number and especially for their café and Remita businesses and therefore, were both owed a duty which the 1st Respondent breached by swapping the SIM card without their consent, the Court correctly found as being far from correct and non-existent. On page 558 of the record it found as follows:
“Whilst there is no gainsaying that the 1st Defendant (and by implication, the 2nd Defendant being the 1st Defendant’s agent as I have held) no doubt owes the 2nd Plaintiff a duty of care to ensure that his MTN SIM card is protected from interference by unauthorized third parties, no such duty of care is owed to the 1st Plaintiff who is not 1st Defendant’s customer.”

It was placed before the Court that from 29/4/17 when the SIM card was swapped, there were unauthorized withdrawals from the First bank account of the 2nd Appellant which amounted to a sum of N418,840.00 which the Appellants herein claimed as special damages.

The Court found that, the swapping of the 2nd Appellant’s SIM card was as a result of lack of due care on the part of the 1st and 2nd Respondents. It found thus, on page 558 of the Record:
“But judging by the pleadings and the evidence led, it seems to me that the Defendants did not exercise due care in swapping the 2nd Plaintiff’s MTN SIM card in favour of a third party.”

On page 559 of the Record it stated further thus, still on the swapping of the 2nd Appellant’s SIM card:
“…But even a cursory look at these exhibits will reveal that the individuals in the two photographs are markedly different…”

The third party in whose favour the swapping was made according to the Court, from a cursory look is different from the photograph of the 2nd Appellant. I shall in the course of this judgment return to that finding of lack of due care on the part of the 1st and 2nd Respondents.

I will for the moment proceed with the issue hinged on whether the swapping of the 2nd Appellant’s SIM card was the cause or gave way to the alleged illegal withdrawal of funds from the 2nd Appellant’s account. The Appellants’ position was that the Personal Identification Number (PIN)

password as well as the Bank Verification Number (BVN) were stored in the swapped SIM card and that the information automatically appeared in the new SIM card and made it easy for the beneficiary fraudster, third party, to transact on the 2nd Appellant’s account. That, the Appellants had not until the swap lost money through USSD in that manner from his account and that his phone was always locked with passwords. For the Respondents, the two layer security applicable to all commercial banks in Nigeria must come into play before funds can be released from an account through the USSD. That, it included the use of the 2nd Appellant’s unique pin and username to login before data stored on the old SIM card can be synchronized with the new SIM card as it will not automatically come out when the ‘welcome-back’ to the network was done by the 2nd Appellant in January 2017.

The Court found as follows on page 563 of the Record:
“Exhibit P20 shows unequivocally that a customer is required to input his 5-digit PIN to enable him carry out USSD transactions which implies that it takes more than mere access to a customer’s phone number to make withdrawals or transfers from his bank account registered on a USSD platform and linked to his phone number.”

Further on whether there was need for the user to enter the pin of the owner of the account before funds can be moved, it found that both sides, PW1 and DW1 gave conflicting testimonies, neither of them was discredited under cross-examination by the other party and that there was no valid basis for the Court to believe one party and disbelieve the other. In order to resolve the issue, as in proof of a matter in civil cases, preponderance of evidence/balance of probabilities. The Court found on pages 563-564 of the Record that the PW1, the 2nd Appellant, failed to “give any insight on what processes he was directed to follow which would have assisted the Court in unraveling the truth. There is also no available documentary evidence showing the procedure for retrieving data stored on a swapped SIM card which could have served as hangar for assessing the veracity of the testimonial evidence adduced by PW1 and DW1. It therefore seems to me that, the onus probandi lies on the party who will fail if no further evidence were led on either side, namely the Plaintiffs.

In the absence of any clear-cut, credible evidence explaining how the 3rd party had access to the confidential 5-digit PIN otherwise known only to the 2nd Plaintiff such that he/she was able to make withdrawals or transfers from the 2nd Plaintiff’s account through USSD platform, I find myself unable to hold, on a balance of probabilities, that the swapping of the 2nd Plaintiff’s SIM card per se occasioned loss and damage to the Plaintiffs as claimed.”

Flowing from the foregoing paragraph, the Court on page 564 of the Record found itself unable and without jurisdiction “to suo motu amend or alter the reliefs formulated and claimed by joint claimants so as to grant judicial remedy to one claimant and not the other. Joint claimants in an action can only succeed or fail jointly. Not otherwise.”

The finding of the Court that the Respondents breached their contractual obligation to the 2nd Appellant in terms of network service provision when his SIM card was wrongly swapped for some other customer in my considered view and humbly, should not be pushed aside or lost on the 2nd Appellant, who, as found in fact, is the registered customer of the 1st

Respondent. A party to a contract or an agreement has the locus standi to sue in respect of any breach of his right in the agreement or contract or for a refusal by the other party to the agreement to discharge his obligations under the agreement or contract. See the cases of OWODUNNI V. REGISTERED TRUSTEES OF CCC & ORS 2000 6 SCNJ 399 and BASINCO MOTORS LTD. V. WOERMANN LINE & ANOR 2009 13 NWLR PT. 1159 149 and EMORI V. ESUKU 2012 LPELR 9797 CA. Respectfully, one is unable to agree with the position of the Court that by the joinder, “the suit brought with a total stranger and interloper to the contractual relationship” between the 2nd Appellant and the 1st Respondent, the reliefs sought were thereby caught and none could be granted. In consequence of the foregoing, the entire suit was dismissed as unmeritorious and all the reliefs refused. It is trite and as its been long settled by plethora of cases that no pleadings shall be defeated by reason of mis joinder or non joinder of parties and the Court is expected to treat each case on its merit in respect of the rights of the parties. As stated by the apex Court, no mis joinder or non joinder will

defeat a suit. See the cases of CHIEF ONWUKA KALU V. CHIEF ODILI-IN RE: CHIEF NWOJA & 2 ORS 1992 SCNJ PT. 1 76, NWEKE V. NWEKE 2014 LPELR-CA/E/93/2013, A-G RIVERS STATE V. AKWA IBOM STATE 2011 29 WRN 1 and WAHAB A. SAPO & ANOR. V. ALHAJA BINTU SUNMONU 2010 LPELR-SC 314/2001.

The trial Court has the primary function of evaluating and ascribing probative value to the evidence before it and in the performance of that privileged role, it found as it clearly stated on pages 558 and 559 of the Record that the 1st and 2nd Respondents “did not exercise due care in swapping the 2nd Plaintiff’s MTN SIM card in favour of a third party” which clearly was a breach of the contractual terms between the 2nd Appellant and the 1st Respondent, through the 2nd Respondent as its agent. The 2nd Appellant in my considered view ought to be compensated in that regard in so far as he asked for the relief as the Court will not give what has not been asked for, not being a Father Christmas. This Court is empowered to right the wrong conclusion reached by the Court in refusing to grant the relief sought by the 2nd Appellant in respect of the breach by the 1st Respondent having found such breach.

In the light of the foregoing, the sole Issue is resolved partly in favour of the Appellants’ case. In consequence, the appeal succeeds in part. As empowered, some of the reliefs sought at the Court below are grantable in the circumstances of this appeal.

One finds relief (a) in the Statement of claim grantable being a breach to the contractual terms between the 2nd Appellant and the 1st Respondent and its agent the 2nd Respondent which the Court clearly stated. Reliefs (b) (c) (e) one agrees were not proved on the preponderance of evidence as stated by the Court. Relief (f) should be grantable having so found that there was the swap wrongly carried out to the disadvantage of the 2nd Appellant. Relief (h), the cost of the action from the record was not established. There was no evidence as to how much was expended and the mere asking for it cannot suffice. The Court is not expected to begin to conjure likely sums that were expended, as it is like a relief for special damages which must be specifically pleaded and proved. See the cases of DIVINE IDEAS LTD. V. UMORU 2007 ALL FWLR PT. 380 1468 and FORTUNE INTERNATIONAL BANK PLC V. CITY EXPRESS BANK LTD. (2002) 14 NWLR PT. 1319 86.

That relief therefore fails and cannot be granted. As regards relief (d), general damages and given the finding of the breach in favour of the 2nd Appellant one is of the view and humbly that some damages should be awarded in that light. Consequently, relief (a) is granted, relief (d) in the sum of One Million Naira only, relief (f) granted, as well as relief (g).

PETER OLABISI IGE, J.C.A.: I agree.

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

Appearances:

JUDE UGWUANYI, with him, CORNELIUS UGWUANYI and M. O. OCHIL For Appellant(s)

AFAM OSIGWE, with him, MRS. CHIDIMMA EKE For Respondent(s)