FIDELITY BANK PLC V. BAYUJA VENTURES LIMITED & ANOR (2011)

FIDELITY BANK PLC V. BAYUJA VENTURES LIMITED & ANOR

(2011)LCN/5020(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 6th day of December, 2011

CA/L/473/2007

RATIO

FORMULATION OF ISSUES: WHETHER THE COURT OF APPEAL CAN FORMULATE ITS OWN ISSUES IN APPEAL

It is trite law that this court has a wide and unfettered discretionary power to formulate its own issues in the interest of justice provided they relate to the grounds of the appeal and flow therefrom. In other words, an appellate court can formulate its own issues where in its opinion the issues formulated by the parties would not justly or equitably dispose of the appeal before it. PER SIDI DAUDA BAGE, J.C.A

ISSUES FOR DETERMINATION: WHETHER AN APPEAL COURT CAN PREFER OR ADOPT THE ISSUE OR ISSUES FORMULATED BY ANY OF THE PARTIES TO AN APPEAL

Further still, an appeal court can also in the same manner prefer or adopt the issue or issues formulated by any of the parties to an appeal where same would enable it do justice to the appeal. Relevant and in support is the case of Agboreh & Anor. V. Mimra & Ors. (2008) 2 SCN 55 at 71 herein the apex court said thus: “Finally, an appellate court can prefer issue or issues formulated by any of the parties and can, itself and on its own, formulate on issue or issues which in its considered view is/are germane to and is or are pertinent in the determination of the matter in controversy. See: the cases of Musa Sha (Jnr) & Anor. V. Da Rap. Kwan & 4 Ors. (2000) 5 SCNJ 101; Church of Zion of Nig. Ugbebla & 3 Ors. (2003) 1 SCNJ 463 at 479; … and Emeka Nwana V. Federal Capital Development Authority & 5 Ors. (2004) 13 NWLR (pt 889) 128 at 142-143; (2004) 7 SCNJ 90 of 99…” PER SIDI DAUDA BAGE, J.C.A

INTERFERENCE WITH CONCURRENT FINDINGS OF FACT: CIRCUMSTANCE IN WHICH AN APPELLATE COURT WILL INTERFERE WITH THE CONCURRENT FINDINGS OF FACTS MADE BY THE LOWER COURTS

The law is settled on the instance where appellate court will disturb concurrent findings of facts by the lower court, only where such findings are improper or perverse having regard to the evidence. See: Ogbero Egri V. Edo Uperi (1974) 1 NWLR 22; Amusa Opoola Adio & Anor V. The State (1986) 2 NWLR (Pt 24) 587; Woluchem V. Gudi (1981) 5 SC 297; Oguonzee V. State (1998) 5 NWLR (Pt 551) 521 at 580. PER SIDI DAUDA BAGE, J.C.A

FRAUD: ON WHAT BASIS IS THE OFFENCE OF FRAUD PROVED

Where a party raises fraud which is a criminal offence in the circumstances of this case it must be proved beyond reasonable doubt pursuant to section 138 of the Evidence Act. See OGUNDELE V. AGIRI (2009) 18 NWLR (pt. 1171) page 219. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

BANK: WHETHER A BANK CAN UNILATERALLY FREEZE AN ACCOUNT OF A CUSTOMER

There is no law or rule of practice in this country which allows an individual who suspects another of having committed a crime to take the laws into his hands or resort to self help. The procedure in all civilized countries including Nigeria, is that such suspects are reported to law enforcement agencies who, after investigation and if the suspect is found culpable, is charged to court. It is only the court that can pronounce a person guilty of a crime, No other institution or individual is endowed with such power. In the instant case, the Appellant had suspected the Respondents of colluding with its Manager, Mr. Suleiman Lere (who at the time was the Apapa Branch Manager of the Appellant) and defrauded it of various sums of money. The bank then unilaterally placed the account of the Respondents on what they term “NO DEBIT STATUS” which action has the effect of freezing the said accounts operated by the Respondents. The offence called fraud was clearly defined by the Apex court in Onwudiwe V. Federal Republic of Nigeria (2006) 10 N.W.L.R. (pt.988) 382 which is criminal in nature. By Section 138 of the Evidence Act, a criminal offence must be proved beyond reasonable doubt before an accused person can be convicted. But in this case, no such thing happened. The Appellants arbitrarily and without any lawful excuse resorted to self help by unilaterally freezing the accounts of the Respondents. No person or institution, no matter how highly placed or powerful is allowed to take laws into its hands else we may descend into chaos. See Governor of Lagos State V. Ojukwu (1986) All NLR 235. PER JOHN INYANG OKORO, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

Between

FIDELITY BANK PLC – Appellant(s)

AND

1. BAYUJA VENTURES LIMITED

2. BASHIR Y. JAMOH – Respondent(s)

SIDI DAUDA BAGE, J.C.A (Delivering the Leading Judgment): This appeal is against the judgment of the High court of Lagos State sitting in Ikeja, presided by Hon. Justice I.O. Kasali delivered on the 29th of September, 2005. The Appellant was the defendant at the lower court, while the Respondents were Claimants. The Plaintiff/Respondents claims against the Defendants/Appellant jointly and severally at the lower court are for:

(1) A declaration that the directive and or instruction by the 1st Defendant to the 2nd Defendant on or about 8th day of October, 2002 to place the plaintiffs’ Account Nos. 0043000001870 and 0041100000033 on “NO DEBIT STATUS” which action has the effect of FREEZING the said Accounts operated by the plaintiffs at the Apapa Branch of the FSB International Bank Plc is unconstitutional, illegal, arbitrary, wrongful, null and void.

(2) A declaration that the action of the Defendants jointly and severally to place the Plaintiffs’ Accounts Nos. 0043000001870 and 0041100000033 operated by the Plaintiffs at the Defendants’ FSB International Bank Plc, Apapa Branch on “No Debit Status” thereby effectively freezing the Plaintiff said Accounts is wrongful, illegal, unconstitutional, arbitrary, null and void and of no legal effect whatsoever.

(3) An order quashing the purported instruction or directive of the Defendants dated 8th October, 2002 freezing the Plaintiffs’ Account Nos. 0049000001870 and 0041100000033 being kept and operated by the Plaintiffs the Apapa Branch of the FSB International Bank plc.

(4) An order defreezing the said Account Nos. 0043000001870 and 0041100000039, being kept by the Plaintiffs with the Apapa Branch of the FSB International Bank Plc.

(5) An order directing the FSB International Bank Plc and in particular FSB International Bank Plc Apapa Branch to continue Banking operations with the plaintiffs in respect of the Plaintiffs’ Account Nos. 0043000001870 and 0041100000033.

(6) An order of injunction restraining the Defendants whether by themselves, their agents, servants and or privies from further interference in any manner whatsoever or howsoever with the normal operations of the plaintiffs, Account Nos. 0043000001870 and 0041100000033 operated by the Plaintiffs at the Apapa Branch of the FSB International Bank plc.

(7) An order for payment of the sum of N20,000,000.00 (Twenty Million Naira) to the Plaintiffs being the plaintiffs money with the Defendants plus interest at the rate of 20.5% per annum effective from 27th of September, 2002 until final judgment and thereafter at the rate of 6% per annum until judgment debt is finally liquidated.

(8) An order for payment of the sum of N9,000,000.00 (Nine Million Naira) to the Plaintiffs being the Plaintiffs money with the Defendants plus interest at the rate of 20% per annum effective from 14th day of September, 2002 until final judgment and thereafter at the rate of 6% per annum until judgment debt is finally liquidated.

(9) An order for payment of the sum of N3, 050,139.28 (Three Million Fifty Thousand, One Hundred and Thirty Nine Naira Twenty Eight Kobo) to the Plaintiffs being the Plaintiffs money with the Defendants plus interest at the rate of 20% per annum effective from 18th day of September, 2002 until final judgment and thereafter at the rate of 6% per annum until judgment debt is finally liquidated.

(10) An order for payment of the sum of N684, 647.99 (Six Hundred and Eighty Four Thousand, Six Hundred and Forty Seven Naira Eighty Eight Kobo) to the Plaintiffs being the Plaintiffs money with the Defendants plus interest at the rate of 6% per annum effective from 1st November, 2003 until final judgment and thereafter at the rate of 6% per annum until the judgment debt is finally liquidated.

(11) An order for payment of the sum of N39, 864 US Dollars (Thirty Nine Thousand, Eight Hundred and Sixty Four Us Dollars or its equivalent in Naira at the prevailing exchange rate being the amount of damage paid by the Plaintiffs as a result of the Defendants illegal defreezing of the Plaintiffs account and their attended delay occasioned by the Defendants action.

(12) N20, 000,000.00 (Twenty Million Naira) being general and special damages against the Defendants jointly and severally for the wrongful interference with the Plaintiffs’ Account Nos. 0043000001870 and 0041100000033 at the Defendants Apapa Branch office.

The background facts are that, the Claimants/Respondents were at all material times relevant to the subject matter of this suit the Customers of the Appellant Branch. The 1st and 2nd Respondents maintained Account Nos. 0043000001870 and 0041100000033 respectively. The Appellant had frozen the two accounts by entering what was referred as “NO DEBIT STATUS” on an allegation of fraud committed on the Respondents accounts pending Police Investigation.

The Appellant alleged that the Respondents colluded with Mr. Suleiman Lere to defraud it of N30 Million bank draft and another N4.006 Million third party cheques belonging to NMA. The said sums were traced to the Respondents two accounts and they claim to be ignorant of the transactions and that Mr. Suleiman Lere was dealing with their account without their consent.

The Appellant pleaded three major fraudulent entries /transactions perpetuated with the consent of both Respondents in complicity with Mr. Suleiman Lere through the accounts of the Respondents. The said fraudulent entries were:

(a) the illegal and unauthorized crediting of the 2nd Respondent’s Evergreen Savings Account with the sum of N20.6 Million by Mr. Suleiman Lere.

(b) the fraudulent conversion of three Nigeria Maritime Authority’s (NMA) cheques in the value of N4,006,000.00 Million and crediting the sum into the account of the 1st Respondent.

(c) the complicity of the 2nd Respondent in obtaining a draft for the sum of N30 Million which value was not debited into either the 1st or 2nd Respondents account.

The action of the Appellant was considered offensive and wrongful by the Respondents who approached the lower court for its intervention to declare the action of the Appellant wrongful, illegal and unconstitutional and to order the release of the Respondents, investment plus interest.

The lower court entered judgment in favour of the Respondents against the Appellant. Dissatisfied with the decision of this court the Appellant filed this appeal.

In the Amended Notice of Appeal dated 15th November 2006, there were seven (7) grounds of appeal from which the Appellant distilled five issues for determination of this court. The issues are:

(1) Whether from the documentary and oral evidence placed before the trial court the Appellant proved the Respondents’ complicity in defrauding the Appellant and benefited from such fraud. (Grounds a, b, d and g).

(2) Whether in view of banking practices, rules and regulations, the sum of N4,000,000.00 (Four Million Naira) transferred from the 1st Respondent’s account to the 2nd Respondent’s account by the 2nd Respondent on the 30th September, 2002 were proceeds from Exhibit P7 or the fraudulently converted National Maritime Authority (NMA) CHEQUES (Exhibits P14 A-C) Grounds a, b, d and g).

(3) Whether the trial Judge in the face of the evidence adduced in this case was right in holding that Exhibits P12, P20 and P23 exonerated the claimants/Respondents in participating in the commission of fraud against the 1st Defendant/Appellant (Ground c).

(4) Whether the lower court was right in holding the Appellant liable for not calling Mr. Suleimon Lere as a witness (Ground e).

(5) Whether the Appellant could in the circumstances of this case and upon reconciliation of the Claimants/Respondents accounts in the face of the 2nd Claimant/Respondent’s monies in Bankers Acceptance to reverse the fraudulent credits and debits in the Claimants/Respondents’ accounts (Ground f).

The first issue was indicated to have been distilled from grounds a, b, d and g of the Appellant’s notice of appeal. In a nutshell the submission of the learned counsel on the issue in question is to the effect, inter alia, that it could safely be argued together with issue number 2 for the simple reason of convenience and the fact of showing the complicity of the Respondents in defrauding the Applicant.

It was submitted that in considering the Respondents complicity in the transaction the subject of this appeal the lower court ought to have considered every act of the 1st and 2nd Respondents vis-a-vis banking laws, rules and regulation. The 2nd Respondent’s conducts especially where he never sought to know who gave Mr. Lere’s relations N20.6 Million or where they got the money. The money was paid or credited into his account on the 19th April 2002 with a value date of 25th April 2002.

It was argued further that nowhere in the statements of Mr. Lere to the Police Exhibit P12 – pages 1-10 that Mr. Lere corroborated the testimony of the 2nd Respondent as to the fraudulent money belonging to his relation. Mr. Lere at no time admitted telling the 2nd Respondent to custody (sic) the money for Mr. Lere’s relations. All Mr. Lere admitted to in Exhibit P12 was that he committed the crime using the Respondents accounts without the 2nd Respondent’s knowledge, the acts of the 2nd Respondent shows otherwise.

Further it was argued that Mr. Lere’s said position does not corroborate the hard facts in Exhibits D14D, D15A, D158, D16, D17 and D19. These are documentary evidence that oral testimonies cannot be admitted to alter vary subtract or added to especially where such documents’ brood no ambiguity. See Olaleye v. Afro Continental (Nig.) Ltd (1996) 7 NWLR (Pt. 458) 29 at 40; Ebueku v. Amoca (1988) 2 NWLR (Pt. 75) 128; Ekwunife v. Wayne (West Africa) Ltd (1989) 5 NWLR (Pt. 122) 422 also Section 132 of the Evidence Act.

It is further argued that Exhibit P12 made no mention of the stories told by 2nd Respondent, the lower court however believed the 2nd Respondent hook, line and sinker. Our courts have held in a plethora of cases that circumstantial evidence is good and even better than direct evidence and it is sometimes referred to as the best evidence capable of proving a proposition with the accuracy of mathematics. See Ohan v. State (1985) 3 NWLR (Pt. 12) 236; Edobor v. State (1975) 9-11 SC page 69; Arche v. State (1993) 6 NWLR (pt. 302) 752.

It is further argued that the position of the law with regards to conspiracy is established if it is shown the criminal design alleged is common to all the suspects. Proof of how they connect with or among themselves is not necessary. Indeed the conspirators need not know each other. They need not have started the conspiracy at the same time. It is sufficient even though the conspiracy had been started and some persons joined at a later state. The bottom line of the offence is the meeting of the minds of the conspirators since it is a difficult offence to prove directly, inference from certain criminal acts of the parties concerned in pursuance of an apparent criminal purpose will suffice. See: Dabo v. State (1977) 5 SC 197.

On issue No. 3, it was argued that on the basis of the testimony of PW6 (IPO) under cross-examination and the facts before the trial court evidencing the acts of 2nd Respondent and documentary evidence to corroborate the said facts against the 2nd Respondent the trial court ought not to have relied on Exhibits P20 and P23. See: Aigbadion v. State (2000) 7 NWLR (Pt. 666) 686 at 700; Societe General Bank (Nig) Ltd v. Ajekoro (1999) 11 NWLR (pt 628) 521 at 542 paras F-G; Onuchukwu v. State (1998) 4 NWLR (pt 547) 576.

On issue 4, it was argued that even in criminal matters where the standard of proof is higher; there is no rule of law or practice which makes the court hesitant in convicting upon the evidence of a single witness unless there is a suggestion that the witness is an accomplice or in a case where corroboration is required either by law or as a matter of practice. See: – Agih v. Ejinkeonye & Bros. Transport Ltd (1992) 3 NWLR (Pt 228) 200 at 211 paras G-H; Ajoo v. Ashiru (1973) 11 SC 29. Also Section 178 of the Evidence Act.

It is further argued that the burden of proof ought to swing on the Respondents to show they never helped Mr. Lere to defraud the Appellant. The burden of proving their non-complicity in fraud was that of the Respondents in the face of evidence placed before the court and not for the lower court to demand of the Appellant to call Mr. Lere to do so on behalf of the Respondents. See:- Arase V. Arase (1981) 5 SC 53; Odiete v. Okotie (1992) 6 SC 69.

On issue No.5, it was argued that as a matter of general principles a banker will be liable for debiting the account of a customer without the customers’ instructions or consent. There are exceptions to this general rule which includes the fact that where the customer condoned the fraud he will be stopped from setting up want of authority against the bank for debiting his account. See: Bank of the North Ltd v. Lakechad Research institute (1995) 6 NWLR (pt 403) 607 at 616 para C.

It is further argued that the bank can use a customer’s investment or deposit as it where to-off-set any balance on the overdraft or overdrawn account. See: First Bank of Nig. Ltd. V. Chief E.O. Osunsedo (1997) 11 NWLR (pt. 527) 1-3 at 142-149.

In conclusion of the submission thereof the learned Counsel has urged on the court to allow the appeal set aside the judgment of the lower court entering judgment for the Respondents and to remit the case back to the High Court of Lagos State for re-trial before another Judge as the decision appealed against is perverse, as it is not only against the weight of evidence but it is altogether against the evidence. Pursuant to the order of this court made on the 20th of July 2010 the Appellant filed a further address on the 8th of December 2010, which was on the legal impact of the admission by the Respondents that the Appellant was defrauded by one Mr. Suleiman Lere and that the 2nd Respondent allowed the said Mr. Suleiman Lere to use his account. This admission is found variously in the 2nd Respondent’s evidence in chief ,cross-examination, several exhibits tendered and admitted at the trial. At page 8 paragraph 4.16 of joint Respondents, brief of argument, statement of 2nd Respondent (PW7) at 221 lines 2-5, lines 5, 9, 10-11, 12-13. Also page 343. Also Exhibits D13, D14A, D148, D15, D16 and D17. Also during cross examination at page 344 lines 2-12, 21-30. At Exhibit P22 page B5A, B5B.

On the other hand the joint Respondents brief of argument adopts the five (5) issues formulated by the Appellant as issues for determination. In addition, the Respondents added up two (2) additional issues which are considered germane and pertinent for the determination of this appeal.

The five (5) issues formulated by the Appellant are as follows:

(1) Whether from the documentary and oral evidence placed before the trial court, the Appellant proved the Respondents complicity in defrauding the Appellant and benefited from such fraud.

(2) Whether in view of banking practices, rules and regulations, the sum of N4,000,000.00 (Four Million Naira) transferred from the 1st Respondent’s account to the 2nd Respondent’s account by the 2nd Respondent on the 30th September 2002 were proceeds from Exhibit P7 or the fraudulently converted National Maritime Authority (NMA) cheques (Exhibits P14A-C).

(3) Whether the trial Judge in the face of the evidence adduced in this case was right in holding that Exhibits P12, P20, P23 exonerated the Claimant/Respondent in participating in the commotion of fraud against the 1st Defendant/Appellant.

(4) Whether the lower court was right in holding the appellant liable for not calling Mr. Suleiman Lere as a witness.

(5) Whether the Appellant could in the circumstances of this case and upon reconciliation of the claimant/Respondents’ account in the face of the 2nd claimant/Respondent’s monies in Bankers Acceptance to reverse the fraudulent credits and debits in the claimants/Respondents’ accounts.

ADDITIONAL ISSUES FORMULATED BY THE RESPONDENTS

(1) Whether the 1st Respondent, Bayuja Ventures Limited can be held responsible and/or liable for the criminal act of the Appellant’s Branch Manager and the 2nd Respondent to warrant the unilateral and arbitrary termination of the separate and distinct investment contract between the 1st Respondent and the Appellant with the purpose of appropriating the 1st Respondent’s legitimate funds when there was no evidence whatsoever and howsoever tracing the alleged fraud money into the fund contained in the separate and distinct investment.

(2) Whether the Appellant can award punishment and or impose penalty for the criminal offence of fraud of Appellant’s Branch Manager and the 2nd Respondent by appropriating the investment of the 1st Respondent as compensation for the Appellant’s loss arising from the alleged fraud. Put in another way, whether the reward of punishment and/or imposition of penalty for the criminal offence of fraud allegedly committed by the Appellant’s Branch Manager in collusion with the 2nd Respondent was not a flagrant contravention of the mandatory provisions of section 36(1) & (5) of the 1999 Constitution of the Federal Republic of Nigeria and therefore illegal, wrongful and unconstitutional.

In arguing issues 1 and 2 it is submitted that the crux of these issues seek to determine whether the Appellant proved the Respondents complicity in the sense of their colluding with the Appellant’s Manager Mr. Suleiman Lere, in defrauding the Appellant. Our considered opinion is that from the totality of the evidence before the lower court as well as the relevant exhibits there is no evidence to show that the Respondents are guilty of collusion or complicity with the Appellant’s staff to defraud the Appellant.

It is further argued that it is the Appellant’s Branch Manager who deceived the 2nd Respondent. Consequently, the Appellant is responsible for the acts and conduct of the Manager committed in the course of his employment pursuant to the principle of vicarious liability. See: – Ayodele James V. Midwest Motors Ltd (1978) 11 and 12 SC 31. Also Section 45 (2) of the Banks and other Financial Institutions Act Cap 83 Laws of the Federation which makes the employer of any Agent, Clerk or Servant liable for such persons conduct in the course of his employment that will attract punishment or penalty under the Act.

It is further argued that this court should uphold the decision of the lower court that the Appellant failed to discharge the onus placed on them by law to prove the allegation of crime against the Respondents beyond reasonable doubt. The law is well settled that where there is allegation of crime in civil cases, the proof required is beyond reasonable doubt.

See: – Section 138(1) Evidence Act Cap E14 Laws of the Federation, 2004. See also Tewogbade v. Ohadina (1994) 4 NWLR (Pt 338) 326 at 352; Jim Nwobodo V. C.C. Onoh (1984) 1 SCNLR 1.

It is further argued that the finding of facts on these issues by the lower court who saw and witnessed the demeanor of the witnesses before it is in accord with justice is reasonable and unassailable and there are credible evidences both oral and documentary in support of the findings. More importantly the lower court considered all material evidence before it, in arriving at that finding. The law is very well settled that an Appellate Court will not reverse the finding of fact by a trial court where there is credible evidence in support of the findings or there is no miscarriage of justice and where the trial court did not admit inadmissible evidence. See: Ali v. Alesinoye (2000) 6 NWLR (pt. 660) 177.

On issue No. 3 whether the trial judge in the face of the evidence adduced in this case was right in holding the Exhibits p12, p20 and p23 exonerated the Claimants/Respondents in participating in the commission of fraud against the Appellant, is quite significant to state that the Appellant who were the complainant before the police did not raise any dissatisfaction against P12, P20 and P23 before the trial neither did they complain to a higher police officer about the way and manner the police handed the investigation of their complaints.

Indeed, a copy of the final investigation report contained in Exhibit P20 was duly forwarded to the Appellant following their letter of request dated 24th December, 2002 contained in Exhibit P20.

It is further argued that, it is the law that Appellant is vicariously liable for the conduct and an act of its staff so long as those conducts and acts constituting the infraction, takes place in the course of employment of the staff. See: – S.S.N.L v. Eyeanfin (1976) 9-10 SC at page 135; Okwonkwo V. Okwonkwo (2004) 4 NWLR (pt. 865) 87 at 118.

On issue no. 4 it was argued that the lower court was perfectly in order based on the facts of this case and the evidence before it to have held the Appellant is responsible for not calling Mr. Suleiman Lere as a witness “to give evidence in rebuttal of his statement to the police”. It was the Appellant who set up the allegations of fraud against the Respondents. It is trite that he who assert must prove. The burden of proof required to establish fraud against the Respondents in support of their 3 allegations rested squarely on the Appellant. See Section 138 (1) (2) of the Evidence Act. Also see:- Onah v. State (1985) 3 NWLR (pt 12) 236 at 237; Ali V. Aleshinloye (2000) 6 NWLR (pt 660) 177 at 206 para H; Atane & Anor. v. Amu (1974) 10 SC 163 at 168-169; Nigerian Services Ltd. v. Alh. Bello Afolabi (1978) 2 SC at 57; Nwankwo v. F.G.N. (2009) 4 NWLR (pt 809) 1 at 35. This court is urge to determine issue no. 4 in the affirmative and affirm the decision of the lower court on this point.

On issue no. 5 which closely related to the two additional issues formulated by the Respondents, and thus the three (3) shall be argued together. All the three (3) issues specifically touched on the action of the Appellant as it concerns the appropriation and or confiscation of the monies/investment of the 1st Respondent.

It is argued that the correct proposition of the law is that, where there was credible evidence in support of the findings of fact by the trial court, the court of Appeal will be right to uphold the findings of the lower court. In the instant case, there was credible, infact unchallenged and uncontradicted oral and documentary evidence to support the findings of the lower court. See: Ogun v. Akinyere (2004) 18 NWLR (pt 905) 362 at 388 paras. E-F and 392 paras. B-C.

It is argued that the Appellant had admitted that Exhibits P6, P7 are genuine transactions from the proceeds of FASCOM cheques legitimately between the 1st Respondent and Appellant Bank. This investment contracts were distinct and separate contracts with their own peculiar and independent terms and conditions as stated in Exhibits P26, P27 and P28. Such terms include but not limited to the sum of deposit, the interest rate, the tenure, the commencement date and the maturity date as well as the investor’s name as the 1st Respondent. This can be separated from the general contract between the Appellant and Respondent based on the current and savings account. See:- National Bank of Nigeria Ltd v. Maja & 2 Ors. (1967) NCLR 2-3 at 31; Arjay Ltd v. Airline Management Support Ltd (2003) 7 NWLR (Pt 820) 577 at 634; Northern Assurance Co. Ltd v. Wuraola (1969) 1 NWLR 1.

It is further argued that the Appellant Bank is not a court and it cannot exercise judicial power to impose penalty and or punishment as the Appellant had done in this case on the Respondent for the crime of fraud alleged against the Respondents by the Appellants. See:- Action Congress & Anor. V. INEC (2007) 6 S.C. (Pt 11) 212 at 230 paras. 10-25; Garba v. University of Maiduguri (1986) 1 NWLR (pt 18) 550; Governor of Lagos State v. Ojukwu (1986) 7 NWLR (pt 18) 627. Finally, this court is urged to dismiss this appeal as totally lacking in merit.

There is also the further Respondents address pursuant to the order of this court made on the 20th of July 2010, it was dated and filed on 10th December, 2010. It was argued in this respect that there is no admission on the part of the Respondents that they allowed their account to be used for fraud. See: – Bisi Salau v. Union Bank of Nig. Ltd (1986) 4 NWLR (Pt 38) 701.

On the second issue it was argued that to sit on the customer’s account or entered a “no debit status” which the Appellant did in this case thereby effectively disallowing the customer from running the account, amounts to a breach of contract existing between the bank and the customer. See: National Bank of Nig. Ltd. V. Maja & 2 Ors. (1967) NCLR 23 at 37; Wema Bank Plc V. Osileru (2008) 10 NWLR (pt 1094) 150 at 170; Balogun V. National Bank of Nig. Ltd (1978) 11 NSCC 735; Afribank (Nig) Plc V. A.I. Investment Ltd. (2002) 7 NWLR (pt 765) 40; Purification Tech. (Nig.) Ltd. V. A.G. Lagos State & 31 Ors. (2004) 9 NWLR (Pt 879) 665; Yesuf V. A.C.B. (1991) 1 SC 74; (1981) 12 NSCC 36; Onagoruwa V. IGP (1991) 5 NWLR (pt 193) 593; Allied Bank (Nig.) Ltd V. Akubueze (1997) 6 NWLR (Pt 509) 374 at 398 para ‘F’. In view of the above as contained in the main Respondents’ brief of arguments this court is urged to dismiss this appeal as totally lacking in merit.

The Appellant filed a reply brief dated the 3rd of October, 2009 but filed on the 6th of November 2009, wherein it was argued that, the position of the law is that the content of a document cannot be varied by oral evidence. See: Kwara Hotels Ltd V. Ishola (2002) 9 NWLR (pt 773) 601 at 623.

It was further argued that if the trial court had evaluated both the documentary and oral evidence the court would have found that the Respondent benefited from the proceeds of the N20.6 Million fraud. In the case of Ali Pinder Kwajaffa & Ors. V. Bank of the North Ltd (1999) 1 N4LR (pt 587) 423; Alhaji Akibu V. Opaleye & Anor. (1974) 1 All NLR (pt 2) 344 at 356.

It was further argued that a document should be interpreted in whole and not in parts. A party cannot pick and choose which parts of the document to rely on and which not to. The document must be taken as a whole and parole evidence should not be admitted against the document. See:- Mrs. Agnes Folasade Osu V. Peugeot Automobile (Nig) Ltd (2001) 13 NWLR (Pt 791) 627; Adike V. Obiareri (2002) 4 NWLR (Pt 758) 537; Owena Bank (Nig) Ltd V. Akintuyi (1992) 8 NWLR (Pt 259) 347 at 356 F-H; Owoeye V. Wema Bank Ltd (2001) 9 NWLR (Pt 717) 1 at 77-72 para H-A. It is further argued that, the burden of proof is not static. It shifts depending on credible evidence adduced. See:- Bank of the North Ltd V. Saleh (1999) 9 NWLR (pt 618) 331 at 347 para E.

It is again argued that the 2nd Respondent is the alter ago of the 1st Respondent, the sole signatory of the 1st Respondent’s account and the sole representative of the 1st Respondent known to the Appellant. The 2nd Respondent is a dual personality in its relationship with the Appellant representing both the 1st Respondent and himself. See:- Delta steel Nig. Ltd V. American Computer Tech. Inc. (1999) 4 NWLR (Pt 597) 53 at 66 paras C-D.

Furthermore it was argued that the Appellant should have waited for a court of competent jurisdiction to try and hold the Respondents liable before the Appellant would void the Contract it had with Respondents does not hold water. See:- Olanrewaju V. Afribank Nig. PLC (2001) 13 NWLR (pt 731) 661 at 715 paras F-B.

Furthermore it was argued that the Appellant exercised its discretion by voiding the contract between it and the Respondents rather than wait for the unwilling police force to prosecute the Respondents before it can now void the contracts. This court should allow this appeal.

I have carefully considered the arguments proffered by all the parties in this appeal. It is trite law that this court has a wide and unfettered discretionary power to formulate its own issues in the interest of justice provided they relate to the grounds of the appeal and flow therefrom. In other words, an appellate court can formulate its own issues where in its opinion the issues formulated by the parties would not justly or equitably dispose of the appeal before it.

“Finally, an appellate court can prefer issue or issues formulated by any of the parties and can, itself and on its own, formulate on issue or issues which in its considered view is/are germane to and is or are pertinent in the determination of the matter in controversy. See: the cases of Musa Sha (Jnr) & Anor. V. Da Rap. Kwan & 4 Ors. (2000) 5 SCNJ 101; Lebile V. The Registered Trustees of Cherubim & Seraphim Church of Zion of Nig. Ugbebla & 3 Ors. (2003) 1 SCNJ 463 at 479; … and Emeka Nwana V. Federal Capital Development Authority & 5 Ors. (2004) 13 NWLR (pt 889) 128 at 142-143; (2004) 7 SCNJ 90 of 99…”

To my mind the sole issue for determination in this appeal is:-

“Whether the Respondents colluded, and with their own consent, allowed the use of their accounts by Mr. Suleiman Lere, the Branch Manager Apapa, of the Appellant Bank, to defraud it to the sum of N20.6 Million.”

Let me say here and now that the involvement of Mr. Suleiman Lere, then an employee of the Appellant as its branch manager in Apapa, brought the event that led to this appeal to a narrow margin. The Appellant at page 10 of its brief of argument filed on the 26/11/08 at page 10, paragraph 4.122 stated:-

“It is to be noted that nowhere in the statements of Mr. Lere to the police (Exhibit P12 pages 1-10) that Mr. Lere corroborated the testimony of the 2nd Respondent as to the fraudulent money belonging to his relation. Mr. Lere at no time admitted telling the 2nd Respondent to custody the money for Mr. Lere’s relations. All Mr. Lere admitted to in Exhibit P12 was that he committed the crime using the Respondents’ account without the 2nd Respondent knowledge….The acts of the 2nd Respondent shows otherwise.”

From the above paragraph cited, Mr. Lere, clearly and unequivocally admitted to the commission of the fraud against the Appellant. He also clearly maintained the fact that he committed the crime of using the Respondents’ account without the 2nd Respondent’s knowledge. All of these are not in dispute as the Appellant has not disputed or refuted the admission and/or confession of Mr. Lere. What is at stake or what the Appellant is contending in this appeal are that the acts of the 2nd Respondent shows otherwise than what Mr. Lere had confessed to. The Appellant maintained that Mr. Lere’s said position does not corroborate the hard facts in Exhibits D14D, D15A – D15B, D16, D17 and D19. These are documentary evidence that oral testimonies cannot be admitted to alter, vary, subtract or added to especially where such documents brood no ambiguity.

The Appellant’s main grouse against the Respondents as contained in the above listed Exhibits are three (3) in number, which are:

(a) The illegal and unauthorized crediting of the 2nd Respondent evergreen savings account with the sum of N 20.6 Million by Mr. Suleiman Lere;

(b) The fraudulent conversion of three Maritime Authority (N.M.A.) cheques in the value of N4, 006,000.00 and crediting the sum into the account of the 1st Respondent;

(c) The complicity of the 2nd Respondent in obtaining a draft for the sum of N30, 000,000.00 which value was not debited into either the 1st or 2nd Respondent’s account.

This court just before now mentioned the categorical and unequivocal admission as stated by the Appellant in its brief of Mr. Suleiman Lere to the Police having committed the fraud of N20.6 Million against the Appellant. Also having used his capacity as the branch manager of the Appellant in Apapa at the material time by posting the said fraudulent money into the accounts of the Respondents, without seeking for the consent of the 2nd Respondent to do so in the first place.

The central issue in this appeal is the allegation by the Appellant that the Respondents especially the 2nd Respondent had committed fraud against it. The two contending parties from the Records of Appeal volumes 1 & 11 fought the case frantically at the lower court. Each party presented witnesses and tendered various exhibits. The lower court had the responsibility to evaluate the evidence before it. The lower court in its judgment at page 648 of the records paragraph 2 stated:

“Having established that the answer to issue 1 is in the negative, and if it has not been established in d properly constituted court of Law that the Claimant has committed fraud it would be wrong for any party to assume that a fraud has been committed and proceed to act on that basis.”

In the same record at pages 649-649 the last paragraph the court wits judgment stated:

“I have read thoroughly the Banks and other Financial Institution Decree No 25 of 1999 (BOFIA) there is nowhere in the Act where the bank is given power to place a customer’s account in “No debit status.” DW1 testified to the fact that if a customer’s account is placed on a ‘No debit status’ the customer may not be able to operate the account. I am therefore in agreement with the learned counsel to the claimant that in the absence of any act that confer power to so place a customer’s account on a “No debit status” what the 1st Defendant did amounted to self help.”

This court will state that at the stage of the appellate court, it is not the duty of this court to evaluate evidence of the parties as the Appellant in this appeal intends us to do. No, it is not the duty of this court to evaluate evidence and to ascribe probative values to them; that is the duty of the trial court. The Supreme Court in the case of Eze Ibeh V. The State (1997) 7 SCNJ 256 at 271 stated as follows:-

“On evaluation of evidence, I wish to stress firstly by saying that confirmation of the concurrent findings of facts by this court of the decisions of the two courts below is compelling in the sense that it is an avowed and long judicial policy in this country that the evaluation of evidence called at the trial, the ascription of probative values to them and making primary findings on them are matters within the province of the court of trial which has the singular advantage or is pre-eminently placed of hearing the witnesses testify and watching their demeanours. For this reason, there is a presumption that a trial Judge’s decision on facts is correct. A presumption which must be displaced by a person who seeks to upset the decision if he can. An appellate court on its part in such a case should always be reluctant to interfere or to substitute its views the fact for those in the court of trial.”

See also;- Balogun & ors. V. Alimi Agboola (1974) All NLR (Pt 2) 66; The Military Governor of Western State V. Afolabi Lanibe & Anor. (1974) All NLR (pt 2) 179; Ajao V. Ajao (1986) 5 NWLR (pt 45) 802; and Kponugio V. Adja Kodoja (1933) 2 W.A.C.A 24.

In the present appeal this court has examined the judgment appealed against, contrary to the position of the Appellant; it is not in any doubt that the trial court had evaluated the evidence before it and had appraised all the facts before it. This court will not interfere with the decision of the trial court in this appeal, especially where the record showed that the trial judge has unquestionably evaluated evidence and justifiably appraises the fact it is not the business of an appellate court to interfere and to substitute its own views for the view of the trial court. See:- Onuoha V. The State (1985) NWLR (pt 548); Woluchem V. Gudi (1981) 15 SC 297; Enang V. Adu (1981) 11-12 SC 25.

Also the Appellant at page 32 of the main Appellant’s brief of argument concluded as follows:

“It is on this note that we pray the Honourable court to set aside the decision of the lower court entering judgment for the Respondents and to remit the case back to the High court of Lagos State for re-trial before another Judge as the decision appealed against is perverse and not only against the weight of evidence but is altogether against the evidence.”

This court had stated earlier in this judgment, that the Appellant has not advanced cogent and convincing reason or reasons to warrant its disturbing the judgment of the lower court in respect of this appeal. The law is settled on the instance where appellate court will disturb concurrent findings of facts by the lower court, only where such findings are improper or perverse having regard to the evidence. See: Ogbero Egri V. Edo Uperi (1974) 1 NWLR 22; Amusa Opoola Adio & Anor V. The State (1986) 2 NWLR (Pt 24) 587; Woluchem V. Gudi (1981) 5 SC 297; Oguonzee V. State (1998) 5 NWLR (Pt 551) 521 at 580.

In the final analysis having resolved the sole issue formulated by court in the determination of this appeal in favour of the Respondents and against the Appellant, this appeal is devoid of any merit and it is hereby dismissed by this court. The judgment of I.O. Kasali J, of Ikeja Division of the High court of Lagos state, in suit No. ID/1973/2002, delivered on the 29th of September, 2005 finding in favour of the Claimants/Respondents in respect of 9 out of 12 heads of claim adumbrated in the Claimant’s amended statement of claim is hereby affirmed by this court.

There shall be N30, 000.00 costs in favour of the Respondents.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother SIDI DAUDA BAGE, JCA and I agree with his conclusion that this appeal has no merit and ought to be dismissed. I will add a few words.

The claimant now Respondent on appeal filed the following claims as per their writ of summons on 9th December 2002 as follows:-

(1) A declaration that the directive and or instruction by the 1st Defendant to the 2nd Defendant on or about 8th day of October, 2002 to place the plaintiffs’ Account Nos. 0043000001870 and 0041100000033 on “NO DEBIT STATUS” which action has the effect of FREEZING the said Accounts operated by the Plaintiffs at the Apapa Branch of the FSB International Bank Plc is unconstitutional, illegal, arbitrary, wrongful, null and void.

(2) A declaration that the action of the Defendants jointly and severally to place the Plaintiffs’ Accounts No. 0043000001870 and 0041100000033 operated by the Plaintiffs at the Defendants’ FSB International Bank Plc, Apapa Branch on “No Debit Status” thereby effectively freezing the Plaintiff said Accounts is wrongful, illegal, unconstitutional, arbitrary, hull and void and of no legal effect whatsoever.

(3) An order quashing the purported instruction or directive of the Defendants dated 8th October, 2002 freezing the Plaintiffs’ Account Nos. 0043000001870 and 0041100000033 being kept and operated by the plaintiffs at the Apapa Branch of the FSB International Bank Plc.

(4) An order defreezing the said Account Nos. 00443000001870 and 0041100000033, being kept by the Plaintiffs with the Apapa Branch of the FSB International Bank Plc.

(5) An order directing the FSB International Bank Plc and in particular FSB International Bank Apapa Branch to continue Banking operations with the Plaintiffs in respect of the Plaintiffs’ Account Nos. 0043000001870 and 0041100000033.

(6) An order of injunction restraining the Defendants whether by themselves, their agents servants and or privies from further interference in any manner whatsoever or howsoever with the normal operations of the Plaintiffs’ Account Nos. 0043000001870 and 00411100000033 operated by the Plaintiffs at the Apapa Branch of the FSB International Bank Plc.

(7) An order for payment of the sum of N20,000,000.00 (Twenty Million Naira) to the Plaintiffs being the Plaintiffs money with the Defendants plus interest at the of 20.5% per annum effective from 27th of September, 2002 until final judgment and thereafter at the rate of 6% per annum until judgment debt is finally liquidated.

(9) An order for payment of the sum of N3, 050,139.28 (Three Million Fifty Thousand, one Hundred and Thirty Nine Naira Twenty Eight Kobo) to the plaintiffs being the Plaintiffs money with the Defendants plus interest at the rate of 20% per annum effective from 18th day of September, 2002 until final judgment and thereafter at the rate of 6% per annum until judgment debts is finally liquidated.

(10) An order for payment of the sum of N684, 647.88 (Six Hundred and Eighty Eight Kobo) to the Plaintiffs being the Plaintiffs money with the Defendants plus interest at the rate of 6% per annum effective from 1st November, 2003 until final judgment and thereafter at the rate of 6% per annum until the judgment debt is finally liquidated.

(11) An order for payment of the sum of N39, 864 Us Dollars (Thirty Nine Thousand, Eight Hundred and Sixty Four us Dollars its equivalent in Naira at the prevailing exchange rate being the amount of damage paid by the Plaintiffs as a result of the Defendants illegal defreezing of the Plaintiffs account and their attended delay occasion(sic) by the Defendants action.

(12) N20, 000,000.00 (Twenty Million Naira) being general and special damages the Defendants jointly and severally for the wrongful interference with the Plaintiffs’ Account Nos. 0043000001870 and 0041100000033 at the Defendants Apapa Brach office.

The Respondents had maintained two accounts namely Account Nos. 0043000001870 and 0041100000033 respectively. The Appellant had frozen both accounts by entering what was referred to as a NO DEBIT STATUS on them claiming that both accounts had been used by the Respondents to perpetrate fraud on it. The Appellant claimed to do this pending police investigation of the Respondents and one Mr. Suleiman Lere who was the Appellants’ branch Manager at its Apapa branch.

The Appellant alleged that the Respondents colluded with Mr. Suleiman Lere to defraud it of N30 million bank draft and another N4.05 million third party cheques belonging to another customer – NMA. The said money was traced to the two accounts and they claimed to be ignorant of the transactions and that Mr. Suleiman Lere was dealing with their accounts without their consent. The Appellant took matters into their hands and froze the accounts of the Respondents. The Respondents then brought an action for the court’s intervention to declare the action illegal, wrongful and unconstitutional and an order to release the Respondents’ investments with interest.

Issues were joined at the trial court and evidence led. At the end of the trial, the court held that the Appellant had not proved that it had a right to detain or refuse to release any of the amounts claimed by the Respondents. The learned trial Judge entered judgment in favour of the claimants/Respondents in claims 1-4. It rejected claims 5 & 6. It gave judgment in claims 7, 8, 9 & 10 but rejected the 11th & 12th heads of claim. The Appellants filed an amended notice of appeal the grounds of which were principally against the findings of fact by the learned trial Judge which the Appellant claimed is perverse and we ought to set aside. The relief sought from the Court of Appeal by the notice of appeal is as follows:

To set aside the whole decision of the lower court entering judgment in favour of the Respondent and remitting the case back to the High Court of Lagos State for retrial before another Judge.”

I have also considered the sundry issues indentified by both parties to this appeal and I agree with my learned brother that we are entitled to formulate an issue which would adequately address the complaints raised by this appeal. It is stated as follows.

“Whether in the circumstances, the trial Judge was right to hold that the Respondents were entitled to the money claimed thus reversing to credits the money frozen by the Appellant.”

There is no doubt or contention about the involvement of Mr. Suleiman Lere who was the protagonist in the drama. The fact of the matter is that Mr. Suleiman Lere a Manager of the Appellant planned and perpetrated fraud on it using the accounts of the Respondents as a conduit. The problem is that unless Mr. Suleiman Lere and the Respondents were actually charged with the offence of fraud and found guilty by a court of competent jurisdiction, I don’t see how the Appellant can lawfully withhold the assets in the later’s accounts which the Respondents claim are not the proceeds of fraud. Where a party raises fraud which is a criminal offence in the circumstances of this case it must be proved beyond reasonable doubt pursuant to section 138 of the Evidence Act. See OGUNDELE V. AGIRI (2009) 18 NWLR (pt. 1171) page 219.

It amounts to nothing more than a resort to self help which is unacceptable, and which amounts to lawlessness and brigandage for the Appellant to unilaterally freeze the account of the Respondents. No one is allowed to resort to self help if not we shall all descend into a state of anarchy. See: GOVERNOR OF LAGOS STATE V. OJUKWU (1986) (Pt. 18) page 80; (1985) ALL NLR 235; NWAKURE V. C.O.P. (1992) NWLR (Pt 240).

During the trial, the Respondents were able to prove how they came by the amount of money which they claim was standing to their credit and which was unlawfully withheld by the Appellant. The learned trial Judge was not satisfied with the evidence of the Appellant regarding the source of the credit balance of the Respondents. Even if the learned trial Judge found that the evidence showed that the money in the Respondents, account was sourced from the conspiracy and fraud perpetrated by the Respondents and Mr. Suleiman the Appellant’s staff, the Appellant would have needed to have succeeded on a counter – claim before it can retain the money. I have read the record and I have to agree with the learned trial Judge that a unilateral accounting and action by the Appellant to freeze the Respondents, money is unconstitutional and illegal. All the Respondent needed to do was to prove that they put the money in the Appellant Bank and they had transactions with the Appellant and other people through which the money was generated and they had at a point in time the amount they claimed standing to their credit’ The banker has a contractual relationship with the customer and must give up the amount standing to the credit of the customer on demand. See: YESUFU V. A.C.B. (1931) 1 SC 47, UNION BANK v. IFEOLUWA NIG. ENT. (2007) 7 NWLR (Pt. 1032), BADARU V. S.C.B. NIG. LTD. (2003) 10 NWLR (Pt. 827) Page 91 at pg. 101.

Moreover, the Appellant wants us to reverse the findings of fact made by the learned trial Judge. I have considered the evidence led by the trial court and the findings of fact we have been asked to overturn. The findings relate in part to the credibility of witnesses. This court is powerless to disturb any findings of fact by the trial court based on the credibility of witnesses. Moreso the other findings based on documentary evidence cannot be interfered with unless they proceeded from wrong principles and were not supported by credible evidence. See: NEPA V. ALLI (1992) 8 NWIR Pt. 259 Pg 279 at 303-304.

I agree with my learned brother that this court is not at liberty to evaluate evidence and to ascribe probative value to them. That is the duty of the trial court. The Appellant has not given any cogent and convincing reason why we should disturb the findings of the lower court and hold them to be perverse.

The judgment of the lower court is hereby affirmed. I abide by the orders in the lead judgment.

JOHN INYANG OKORO, J.C.A.: I was privileged to have read in advance the lead Judgment of my learned brother, Sidi Dauda Bage, JCA, just delivered and I agree with him that this appeal lacks merit and ought to be dismissed. My learned brother has adequately stated the facts and the issues raised in this appeal including the lone issue formulated by him. I do not intend to repeat the exercise here. I would rather proceed to add a few words of mine as follows.

In the instant case, the Appellant had suspected the Respondents of colluding with its Manager, Mr. Suleiman Lere (who at the time was the Apapa Branch Manager of the Appellant) and defrauded it of various sums of money. The bank then unilaterally placed the account of the Respondents on what they term “NO DEBIT STATUS” which action has the effect of freezing the said accounts operated by the Respondents.

The offence called fraud was clearly defined by the Apex court in Onwudiwe V. Federal Republic of Nigeria (2006) 10 N.W.L.R. (pt.988) 382 which is criminal in nature. By Section 138 of the Evidence Act, a criminal offence must be proved beyond reasonable doubt before an accused person can be convicted. But in this case, no such thing happened. The Appellants arbitrarily and without any lawful excuse resorted to self help by unilaterally freezing the accounts of the Respondents. No person or institution, no matter how highly placed or powerful is allowed to take laws into its hands else we may descend into chaos. See Governor of Lagos State V. Ojukwu (1986) All NLR 235. I have no hesitation but to agree with the learned trial Judge that the actions of the Appellant was not only illegal but also unconstitutional.

For the above and the detailed reasons contained in the lead Judgment of my learned brother, Bage, JCA, I agree that this appeal lacks merit and is also dismissed by me. I hereby affirm the Judgment of the court below and abide by the consequential orders made in the lead Judgment, that relating to costs, inclusive.

Appearances

Essien Udom with him Inyang UdoemaFor Appellant

AND

Dele Adesina SAN with him Bunmi Lawani (Mrs.), Kayode Olufade & Adeolu AdesuyiFor Respondent