GOLD & ANOR v. AMCON (2022)

GOLD & ANOR v. AMCON

(2022)LCN/16743(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Tuesday, April 05, 2022

CA/IB/98/2020

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

1. BAMIDELE GOLD 2. ENGINEER ADENIRAN ADELERE APPELANT(S)

And

ASSET MANAGEMENT CORPORATION OF NIGERIA RESPONDENT(S)

RATIO

THE POSITION OF LAW ON A “PERVERSE FINDING”

The law is settled that a perverse finding is one which ignores the facts and evidence led before the Court. It is one not borne out of the evidence before the Court. It is a finding which no reasonable Tribunal should have arrived at from the evidence before it. See MOHAMMED VS. FARMERS SUPPLY COMPANY (KDS) LTD (2019) 17 NWLR (PT. 1701) 187; OGUNTADE VS. OYELAKIN (2020) 6 NWLR (PT. 1719) 41; LAGGA VS. SARHUNA (2008) 16 NWLR (PT. 1114) 427 AND UNIVERSAL TRUST BANK OF NIGERIA VS. OZOEMENA (2007) 3 NWLR (PT. 1022)448. PER OJO, J.C.A.

THE POSITION OF LAW ON A “NECESSARY PARTY”

The law is that a necessary party in an action is that person who is not only interested in the subject matter of the proceedings but also one in whose absence the proceedings could not be fairly dealt with. A necessary party has also been held to be a person in the absence of whom the claim cannot be effectively and completely determined by the Court. See POROYE VS. MAKARFI (2018) 1 NWLR (PT. 1599) 91; OLAWOYE VS. JIMOH (2013)13 NWLR (PT. 1371) 362; IGE VS. FARINDE (1994) 7 NWLR (PT. 354) 42; GREEN VS. GREEN (1987) 3 NWLR (PT.480) AND AMON VS. RAPHAEL TRUCK & SONS (1956)1 WRN 357. PER OJO, J.C.A.

WHETHER OR NOT A PROCEEDING CONDUCTED IN VIOLATION OF THE PRINCIPLE OF FAIR HEARING IS VALID

It is trite that any proceeding conducted in violation of the principle of fair hearing is null and void ab initio. It cannot be salvaged. See NDUKWE VS. UNION BANK OF NIGERIA PLC (2021) 4 NWLR (PT. 1765) 65; ZENITH PLASTICS INDUSTRIES LTD. VS. SAMOTECH LIMITED (2018) 8 NWLR (PT. 1620) 165; ORUGBO VS. UNA (2002) 16 NWLR (PT.792) 175; CEEKAY TRADERS LTD. VS. GENERAL MOTORS CO. LTD. (1992) 2 NWLR (PT. 222) 132 AND UNIVERSITY OF NIGERIA TEACHING HOSPITAL MANAGEMENT BOARD VS. NNOLI (1994) 8 NWLR (PT. 363) 376. The proceedings conducted by the lower Court in the absence of United Bank for Africa Plc. is null and void and I so hold. PER OJO, J.C.A.

THE DIFFERENCE BETWEEN AN INTERIM ORDER OF INJUNCTION AND AN INTERLOCUTORY INJUNCTION

I like to commence the resolution of these two issues by reiterating the settled position of the law that there is a difference between an interim order of injunction and an interlocutory injunction. An interim injunction is one granted pending the determination of a Motion of Notice. It is one granted to last until a named date. An interlocutory injunction is one made pending the determination of a substantive suit. See AZUH VS. UNION BANK OF NIGERIA PLC (2014) 11 NWLR (PT. 1419) 580; GROUP DANONE VS. VOLTIC NIGERIA LIMITED (2008) 7 NWLR (PT. 1087) 637; OLUWA GLASS COMPANY LIMITED VS. EHINLANWO (1990) 7 NWLR (PT. 160) 14 AND OBEYA MEMORIAL SPECIALIST HOSPITAL VS. ATTORNEY-GENERAL FEDERATION (1987) 3 NWLR (PT. 60) 325.
In KOTOYE VS CENTRAL BANK OF NIGERIA (1989) 1 NWLR (PT. 98) 419 AT 440, PARAGRAPHS B-C, Nnaemeka-Agu, JSC held as follows:
“So much confusion and conflict appear to have surrounded the use of the expressions “ex parte”, “interim”, and “interlocutory” in the briefs of counsel that I deem it necessary to begin by examining these terms. Indeed, even in decided cases this lack of agreement as to the precise meanings of these words is pretty obvious. At times they are used as if “interlocutory” and “interim” were interchangeable.
In KUFEJI VS. KOGBE (1961) 1 ALL NLR 113 AT 114, an application for an injunction which was fully argued and deliberated upon and in every way had all the attributes of an interlocutory injunction was referred to as interim injunction. In fact “interim” and “interlocutory” were freely used as if they were interchangeable.” PER OJO, J.C.A

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Federal High Court Ibadan Division Holden at Ibadan, delivered on 10th October 2017 and the judgment of the same Court delivered on the 6th of June 2019 in Suit Nos: FHC/IB/CS/112/2017 BETWEEN: ASSET MANAGEMENT CORPORATION OF NIGERIA… CLAIMANT AND (1) DR. BAMIDELE GOLD (2) ENGINEER ADENIRAN ADELERE wherein the learned trial Judge found in favour of the Respondent who was the Claimant.

The Respondent took out a General Claim Form pursuant to Part 3.1(4) of the Asset Management Corporation of Nigeria Practice Direction, 2013 and filed a Statement of Claim which was subsequently amended. By the Amended Statement of Claim filed on 7th May 2019, the Respondent as Claimant claimed against the Appellants (as Defendants) jointly and severally as follows:
(a) The payment of a sum of N14,003,448.48 (Fourteen Million Three Thousand, Four Hundred and Forty-Eight Naira Forty-Eight Kobo) being the amount outstanding and unpaid by the Defendants as at 29th February, 2016 on the credit facility granted to the 1st Defendant by UBA PLC sometime in 2007.

(b) Interest on the said N14,003,448.48 (Fourteen Million Three Thousand Four Hundred and Forty-Eight Naira Forty-Eight Kobo) of 15% from 1st day of March, 2016 until judgment and thereafter at the rate of 15% until final liquidation of the judgment debt by the Defendants.
AND/OR IN THE ALTERNATIVE
(c) An ORDER of this Honourable Court granting forfeiture of the 2nd Defendant’s property situate, lying and being at Block D, Plot 4 and 5 Bola Oluyedun Layout, Alapata Village, Ojoo, Ibadan, Oyo State and which properties are covered by Deed of Legal Mortgage dated 11th November, 2009 registered as No. 5 at Page 5 in Volume 3586 at the Land Registry, Ibadan, Oyo State for the purpose of disposing same by public auction or private treaty or treaties and applying the proceeds thereof towards the liquidation of the outstanding indebtedness of the Defendants.
(d) AN ORDER of this Honourable Court empowering the Claimant or any other nominee or agents of the Claimant to take possession of the 2nd and 3rd Defendants’ properties situate, lying and being at Block D, Plot 4 and 5, Ibadan, Oyo State and which properties covered by Deed of Legal Mortgage dated 11th November, 2009 registered as No. 5 at Page 5 in Volume 3586 at the Land Registry, Ibadan, Oyo State used as securities and/or traced to the 2nd Defendant as Guarantor or Sureties for the Credit facilities advanced to the 1st Defendant by UBA PLC culminating in the outstanding indebtedness as acquired by the Claimant and to dispose same by public auction or private treaty and apply the proceeds thereof towards the liquidation of the credit facility and outstanding indebtedness of 1st Defendant.
(e) Cost of this suit.

Upon being served with the originating processes, the Appellants filed a joint Statement of Defence in which they incorporated a Counter Claim. Parties joined issues vide their pleadings and the case went on to trial. At the end of the day, the learned trial Judge delivered his judgment and found in favour of the Respondent. In the judgment which is at pages 863 to 911 of the Record, he held at page 910 as follows: –
“… I do hold strongly that on a preponderance of evidence, the Claimant’s case and evidence adduced both oral and documentary has more quality and probative value. I hereby adjudge this case in favour of the Claimant accordingly.
I hereby order and grant the relief sought in the alternative as set out in prayer C and D accordingly in the Amended Statement of Claim. I also order cost of N500,000 (Five Hundred Thousand Naira) in favour of Claimants against the 1st Defendant as cost of this suit”.

Dissatisfied with the decision, the Appellants caused their Counsel to file a Notice of Appeal with six grounds of Appeal on the 24th of July, 2019 wherein he sought the following reliefs:
(1) An Order setting aside the judgment of the lower Court delivered on 6th June 2019.
(2) An Order of the Honourable Court entering judgment in favour of the Appellant\Counter Claimant as per the reliefs sought.

The Record of Appeal compiled and transmitted to this Court on the 16th of March, 2020 was deemed as properly compiled and transmitted on the 8th of September, 2020. Parties filed and exchanged their respective Briefs of Argument. The Appellants’ Brief of Argument settled by Olabode Elemide filed on 9th of October, 2020 was deemed properly filed on 22nd of September, 2021. The Respondent’s Brief of Argument settled by Hassan T. Fajemite filed on 27th of August, 2021 was deemed as duly filed on 22nd of September, 2021.

The Respondent filed a Motion on Notice on 27th August 2021 wherein he sought an order of this Court striking out Grounds 1, 2 and 3 of the Notice of Appeal and the related issues in the Appellants’ Brief of Argument. The said Motion was struck out on 10th January 2022 when the appeal was argued for want of diligent prosecution. The Respondent’s Counsel who had Notice of the date of the hearing was absent without reason.

The following five issues were formulated for the determination of this appeal on behalf of the Appellants: –
i) Whether the learned trial Judge was right to have refused to join United Bank for Africa Plc as a party to the proceedings especially in view of the Counter Claim and state of the pleadings and documents placed before the Court thus breaching the principle of fair hearing as 1st Appellant’s Counter Claim was without being heard, nullified, leading the Court not to determine whether United Bank for Africa ever had any debt that Respondent could purchase. (Ground 1 of the Notice of Appeal)

ii) Whether the learned trial Judge was not wrong in law when his Lordship held that the ex-parte order of 10th October 2017 freezing the Appellant’s bank accounts and sealing 2nd Appellant’s house without being heard was not in breach of the maxim of natural justice audi alteram partem. (Ground 2 of the Notice of Appeal)
iii) Whether the learned trial Judge was not wrong in law when his Lordship made no pronouncement regarding the unfreezing of Appellant’s frozen account, even after his Lordship decided they were liable. (Ground 3 of the Notice of Appeal)
iv) Whether the learned trial Judge properly evaluated, made findings and understood the evidence placed before him, having regard to the pleadings and evidence placed before the Court before holding as follows “I dare to pose therefore on what basis then were EXHIBITS DE and EXHIBIT DF analysed and considered…” and went ahead to dismiss the counter-claim. (Ground 4 of the Notice of Appeal)
v) Whether the learned trial Judge was right in dismissing the Counter Claim without ever considering the undisputed evidence that United Bank for Africa Plc wrongly operated 1st Appellant’s account as shown copiously in Exhibits DE and DF and without in any way considering the provisions of the Central Bank of Nigeria Guide to Bank Charges and Monetary Policy Guidelines EXHIBITS DH-DL. (Ground 5 of the Notice of Appeal)

For the part of the Respondent, four (4) issues were distilled in its Brief of Argument. They are:-
(1) Whether having regards to the Asset Management Corporation of Nigeria Act, 2010 (as amended) and Asset Management Corporation of Nigeria (Special Debt Recovery Parties Direction), 2013, the lower Court was not correct in its ruling delivered on 13th day of June, 2018 to have declined to join United Bank for Africa Plc as party to the substantive suit filed against the Appellants by the Respondent. (Ground 1 of the Notice of Appeal)
(2) Whether the lower Court’s ex-parte orders freezing the respective bank accounts of the 1st and 2nd Appellants and sealing the 2nd Appellant’s house pursuant to the provisions of the Asset Management Corporation of Nigeria Act, 2010 (as amended) pending the final determination of the Respondent’s substantive case were unlawful in the circumstances of this case. (Ground 2 of the Notice of Appeal)
(3) Whether the preservative orders granted ex-parte by the lower Court had not automatically abated upon delivery of judgment discharging same. (Ground 3 of the Notice of Appeal)
(4) Whether the lower Court was not right and in the circumstances of this case to have held that Exhibits DE and DF which are the Reports prepared by DW11 did not consider the terms and conditions of the credit facility granted to the 1st Appellant as agreed in the Letter of Offer (Exhibit D1) or that the Report were otherwise unavailing to the Appellants and to have therefore dismissed the Counter-Claim of the 1st Appellant. (Grounds 4 and 5 of the Notice of Appeal)

At the hearing of the Appeal on the 10th of January 2022, learned Counsel to the Appellants adopted and relied on the Appellants’ Brief of Argument filed on 9th October 2020 and which was deemed as properly filed on 22/9/2021. He urged us to allow the appeal. The Respondent’s Counsel who had Notice of the hearing of the Appeal was absent. The Respondent’s Brief of Argument filed on 27th August 2021 and deemed on 22/9/2021 was deemed as duly argued.

I have considered the issues formulated on behalf of the parties and I think it is appropriate to reformulate the issues couched by the parties to make them more concise. The issues which arise for the determination of this appeal are as follows: –
(1) Whether the decision of the lower Court refusing the application made to it by the Appellants to join United Bank for Africa Plc as the 2nd Claimant in the suit before it occasioned a miscarriage of justice. (Ground 1 of the Notice of Appeal)
(2) Whether the ex-parte orders freezing the Bank accounts of the 1st and 2nd Appellants and sealing the house of the 2nd Appellant pending the final determination of the substantive suit were unlawful. (Ground 2 of the Notice of Appeal)
(3) Whether the preservative orders granted ex-parte by the lower Court did not abate upon delivery of the judgment discharging same. (Ground 3 of the Notice of Appeal)
(4) Whether the lower Court was right when it held that Exhibits DE and DF which are the Reports prepared by DW11 did not consider the terms and conditions of the credit facility granted to the 1st Appellant. (Grounds 4 and 5 of the Notice of Appeal)

I shall consider Issue No.1 alone, Issues 2 and 3 together and thereafter consider Issue No.4.

ISSUE 1
Whether the decision of the lower Court refusing the application made to it by the Appellants to join United Bank for Africa Plc as the 2nd Claimant in the suit before it occasioned a miscarriage of justice. (Ground 1 of the Notice of Appeal)
It is the contention of the Appellants that there was sufficient evidence before the lower Court to support the application for joinder of United Bank for Africa Plc. as a party to the suit. Appellants Counsel submitted that there was evidence to show that United Bank Plc. failed in its duty in properly operating the 1st Appellant’s account maintained with it and did not comply with the Central Bank of Nigeria Guide to Bank Charges and Monetary Policy Guidelines. He cited the decision of the Supreme Court in UNION BANK OF NIGERIA PLC VS. ALHAJI ADAMS AJABULE & ORS (2011) LPELR-8239(SC) on the need for banks to comply with Central Bank of Nigeria Guidelines when charging interest on advances, loans, credit facilities or deposits.

He further cited the cases of UNITED BANK FOR AFRICA PLC VS. EYE GYMINERAL RESOURCES LTD & ORS (2009) LPELR-8382(CA); UNION BANK OF NIGERIA PLC VS. MR. N.M. OKPARA CHIMAEZE (2014) LPELR-22699(SC) AND UNITED BANK FOR AFRICA PLC VS. YARO BAKIYAWA YAHUZA (2014) LPELR-23976(CA) on the settled position of the law that a bank owes a fiduciary duty to its customers. He argued that if the trial Judge had properly evaluated the evidence before him he would have found the United Bank for Africa Plc. to be a necessary party and would have granted the application for joinder. He drew our attention to the Statement of Account of the 1st Appellant contained at page 513 of the Record to show that he was no longer indebted to United Bank for Africa Plc. and that the Bank had no debt to sell to the Respondent.

He finally submitted that the lower Court’s refusal to join the Bank as a party breached the rules of fair hearing and occasioned miscarriage of justice to the Appellants. He urged us to resolve this issue in their favour.

Arguing per contra, learned Counsel to the Respondent submitted that the lower Court was right when it refused the application to join United Bank for Africa Plc. as a party. He submitted that UBA ceased to be a necessary party at the point the Respondent purchased 1st Appellant’s debt from her. He cited the cases of GREEN VS. GREEN (1987) 3 NWLR (PT. 61) 480; ADISA VS. OLAYIWOLA (2000) 6 SC (PT. 11) 47 AND UKU & ORS VS. OKUMAGBA & ORS (1974) NSCC 128 on who a necessary party to an action is. He argued that the ownership of the debt owed by the 1st Appellant had been transferred to the Respondent which makes her the only necessary party. He further referred us to Section 34(1) of the Asset Management Corporation of Nigeria, 2010 as amended in 2019 to submit that in the present circumstance the interest of the United Bank of Africa was foreclosed and that all interest, powers and asset became vested in the Respondent.

It is Respondent’s Counsel further submission that non-joinder of the Bank was not fatal as the Appellant had the opportunity to present their case as Counter Claimant. He finally urged us to resolve this issue against the Appellant.

The crux of the complain of the Appellants under this issue is that the lower Court was wrong when it refused an application to it to join United Bank for Africa Plc. as the 2nd Claimant to the suit before it.

The ruling is at pages 382 to 392 of the Record. In that ruling, the learned trial Judge relied on the provision of Section 34(1) of the Respondent’s Enabling Act to hold the Respondent had acquired the interest of United Bank for Africa Plc. in the debt owed by the 1st Appellant and that the bank was no longer a necessary party. At page 388 of the Record, the lower Court held thus:-
“I hold from the above, that where it is clearly not disputed that the Claimant has in fact purchased the 1st and 2nd Defendant’s alleged debt as exhibited in Exhibit 3 attached to the general claim of the Claimant from United Bank for Africa Plc, then it suffices to say, that United Bank for Africa Plc. ceases for all intents and purposes to be a ‘necessary party’ in this suit. Also, I found that the effectual resolution of this matter can be done without the joinder of United Bank for Africa Plc as party. I so hold.”

The learned trial Judge found there is no dispute that the Respondent (then Claimant) acquired the debt owed United Bank for Africa Plc. by the Appellants. The case of the Respondent is that the debt owed the bank by the 1st Appellant was legally transferred to it. The law permits such transfer. The Respondent was established as a body corporate pursuant to Section 1 of the Asset Management Corporation of Nigeria Act, 2015 (as amended) and its function includes acquisition of eligible bank assets from eligible financial institution. See Section 5(a) thereof.
Section 34(1) of the Asset Management Corporation of Nigeria Act (supra) provides as follows: –
“Subject to the provisions of the Land Use Act and Section 36 of this Act, where the Corporation acquires an eligible bank asset, such Eligible Bank Asset shall become vested in the Corporation and the Corporation shall exercise all the rights and powers of the eligible financial institution from which the eligible bank assets was acquired in relation to the Bank Asset, the debtor concerned and any guarantor, surety or receiver, liquidator, examiner or any other person concerned and the eligible financial institution shall cease to have those rights and obligations.”

The Appellants have challenged the finding of the learned trial Judge that the fact of the purchase of the debt owed the United Bank fort Africa Plc. by the Respondent is not disputed. Their case is that they had repaid the loan and there was nothing left for the bank to sell to the Respondent.

The Appellants filed a Motion on Notice on the 20th of March 2018 before the trial Court wherein they sought an order of Court joining the United Bank for Africa Plc. as a 2nd Claimant. The Motion is at pages 341 to 345 of the Record. I have gone through the affidavit in support of the Motion and I find it expedient to reproduce paragraphs 2 – 9 thereof. The said paragraphs read thus:
“2. I had a banking relationship with United Bank for Africa Plc who is the party sought to be joined. I have no business or dealings with the Claimant.
3. United Bank for Africa Plc is indebted to me for overcharging me with illegal charges not known to the circulars of CBN.
4. United Bank for Africa Plc sold its indebtedness to the Claimant. I am not indebted to the Claimant and I have no business dealing with the Claimant. In paragraph 45 of our Statement of Defence which is before this Honourable Court, I state that it is untrue that I owe Claimant any sum at all. No statement of account has been frontloaded with Claimant’s Claims.
5. I aver in paragraph 43 of our Statement of Defence that Claimant purchased no rights as I owe UBA nothing. The Claimant also has no right to institute this action as I owed UBA not a single kobo.
6. The Banking Expert result revealed that UBA Plc is indebted to me due to wrongful and illegal charges made by UBA Plc. I aver that in paragraph 35 of the Defendants’ Statement of Defence that my banking expert worked out the interest as shown in the Schedule of the report attached to it showing that UBA Plc owes me a refund of N8,871,336.20 as interest on sums wrongfully taken from my account.
7. I aver that in paragraph 40 of our Statement of Defence that I could not discover all these excesses, mistakes and illegalities on my own as I was not conversant with the CBN regulations and I needed an expert to reveal these to me when I got the report.
8. The necessary party which is UBA Plc has not been joined in this suit. The presence of UBA Plc in this suit is very important in order to enable the Honourable Court effectively, completely and effectually determine the suit.
9. Some part of our Counter-claim is against UBA Plc (the party sought to be joined) and without joining UBA Plc, the suit will not be adjudicated in the interest of justice. I aver in Paragraph 21 of our Statement of Defence that the expert factored in the interest element on the total sum of Total excess and illegal charges of N5,697,515.73 and Interest refund at prevailing CBN MRR/MPR came to N8,971,366.20 which, added to the excess and illegal charges brought amount refundable to me by UBA Plc to a sum of N14,568,881.93 which I claim from Claimant and United Bank for Africa Plc. jointly and severally.”

The summary of the above is that the Appellants claim the 1st Appellant is no longer indebted to the United Bank for Africa Plc and that being so the Respondent did not purchase any enforceable right.

The Counter affidavit of the Respondent to the Motion is at pages 350–352 of the record, paragraphs 4–11 thereof read thus:-
“4. That I know as a fact that the Respondent is a statutory body established under the Asset Management Corporation of Nigeria (AMCON) Act 2010, as an agency of the Federal Government of Nigeria whose functions include the acquisition of eligible bank assets from eligible financial institutions in accordance with the provisions of the enabling laws and/or under such guidelines and directions issued by the Central Bank of Nigeria.
5. That I know that the depositions in paragraphs 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 19, 20 and 21 are not true, not correct and/or merely crafted or concocted to mislead the Honourable Court.
6. That contrary to the deposition in paragraph 3 of the affidavit in support of the Applicant’s Motion, I know as a fact that the Respondent and/or UBA Plc is not indebted to the 1st Defendant/Applicant and nether was the account of the 1st Defendant/Applicant charged with illegal charges in any way.
7. That contrary to paragraph 4 of the affidavit in support of the Motion, I am aware that the 1st Defendant/Applicant is indebted to the Claimant/Respondent and/or UBA PLC from whom the Respondent bought over the Applicant’s debt from. I know that it is untrue that no statement of account has been frontloaded or served on the Defendant/Applicant by the Claimant in this case.
8. That contrary to paragraph 5 of the affidavit in support of the Motion, I know that by virtue of Asset Management Corporation of Nigeria (AMCON) Act 2010 the Claimant has all the rights to institute this action against the Defendants/Applicants who are indebted to the Claimant/Respondent and who have refused to discharge their indebtedness despite several letters of demands.
9. That contrary to paragraphs 6 and 7 of the affidavit in support of the Motion, I know as a fact that the Claimant/Respondent and/or its predecessor, UBA PLC is not indebted to the Defendants/Applicants howsoever.
10. That contrary to paragraphs 8 and 9 of the affidavit in support of the Motion, I know as a fact that the non-joinder of UBA PLC to this suit will not prevent the complete, effective or effectual determination of this suit by this Honourable Court.
11. That in further contrast to paragraphs 8 and 9 of the affidavit in support of the Motion, the Claimant/Respondent vehemently denies any excess and/or illegal charges totaling N14,568,881.93 or any other sum at all being claimed by the 1st Defendant/Applicant herein against the Claimant/Respondent or UBA PLC.

It is evident from the above depositions that the Respondent denied the claim of the Appellants as contained in their affidavit in support of the Motion. Its position is that United Bank for Africa Plc. is not indebted to the Appellants and that it had acquired rights enforceable against the Appellants without the need to join the bank as a party.

From the affidavit evidence in the Motion for joinder, it is very clear that there is a dispute on whether or not the Appellants were indebted to the United Bank for Africa Plc. from whom the Respondent purchased the debt in issue.

The settled position of the law is that in the consideration of an interlocutory application, such must be considered against the backdrop of the pleadings of the parties, the Writ of Summons, with the affidavit and counter affidavit occupying the pivotal position. See AKHIGBE VS. ASHIMEDUA (2002) 6 NWLR (PT. 817) 439; ADEWALE BELLO CONSTRUCTION COMPANY LIMITED VS INTERNATIONAL BANK FOR WEST AFRICA LIMITED (1991) 7 NWLR (PT. 204) 498 AND OKOYA VS. SANTILLI (1991) 7 NWLR (PT. 206) 753.

I have carefully perused the Amended Statement of Claim of the Respondents at pages 851 to 855 of the Record. Therein the Respondent averred it bought over the non-performing loan granted the 1st Appellant by United Bank for Africa Plc. It claimed that the outstanding and unpaid loan facility was assigned to her vide a Loan Purchase Agreement. According to her all rights including the right to institute the action were assigned and transferred to her.

The Appellants Statement of Defence and Counter Claim is at page 83 to 95 of the Record. Their case is that the 1st Appellant is not indebted to the United Bank for Africa but the bank on the other hand owed him the sum of N61,630,163:61k. They contend the bank had nothing to assign to the Respondent.

From the pleadings of the parties it is very clear they joined issues on whether or not there was an existing debt capable of being transferred. From the pleadings, the affidavit and counter affidavit filed in the Motion for Joinder, it is my considered view that contrary to the finding of the learned trial Judge; the purchase of the debt was a subject of dispute before the lower Court but the learned trial Judge shut his eyes to it.

The law is settled that a perverse finding is one which ignores the facts and evidence led before the Court. It is one not borne out of the evidence before the Court. It is a finding which no reasonable Tribunal should have arrived at from the evidence before it. See MOHAMMED VS. FARMERS SUPPLY COMPANY (KDS) LTD (2019) 17 NWLR (PT. 1701) 187; OGUNTADE VS. OYELAKIN (2020) 6 NWLR (PT. 1719) 41; LAGGA VS. SARHUNA (2008) 16 NWLR (PT. 1114) 427 AND UNIVERSAL TRUST BANK OF NIGERIA VS. OZOEMENA (2007) 3 NWLR (PT. 1022)448.

It is not in doubt that the learned trial Judge did not properly evaluate the affidavit evidence and did not consider the state of the pleading and the issues joined thereon by parties before concluding there was no dispute on the fact of the purchase of the debt allegedly owed United Bank for Africa Plc. by the 1st Appellant. This finding of the learned trial Judge which is the basis of the refusal of the application for joinder is perverse and I so hold.

The foundation of the right of the Respondent to institute the action at the lower Court is the assignment of the alleged debt. The law is that a necessary party in an action is that person who is not only interested in the subject matter of the proceedings but also one in whose absence the proceedings could not be fairly dealt with. A necessary party has also been held to be a person in the absence of whom the claim cannot be effectively and completely determined by the Court. See POROYE VS. MAKARFI (2018) 1 NWLR (PT. 1599) 91; OLAWOYE VS. JIMOH (2013)13 NWLR (PT. 1371) 362; IGE VS. FARINDE (1994) 7 NWLR (PT. 354) 42; GREEN VS. GREEN (1987) 3 NWLR (PT.480) AND AMON VS. RAPHAEL TRUCK & SONS (1956)1 WRN 357.

The fulcrum of the Appellants’ defence and counter claim is that the 1st Appellant is no longer indebted to United Bank for Africa Plc. To my mind, the presence of the said bank in the suit is necessary for the effectual and complete determination of the cause before the Court. A resolution of whether the 1st Appellant is still indebted to the bank will affect whether or not there was a chose in action which could be assigned to the Respondent. Furthermore, the reason for making a person a party to an action is so that he shall be bound by the outcome of the action. A Court is therefore expected in the interest of justice to join as Claimant or Defendant, anyone who may have a stake in the subject matter of the suit or maybe affected by the decision. See ALIOKE VS. OYE (2018) 18 NWLR (PT. 1651) 247; AZUH VS. UNION BANK OF NIGERIA PLC. (2014) 11 NWLR (PT. 1419)580; OKOYE VS. NIGERIAN CONSTRUCTION & FURNITURE COMPANY LIMITED (1991) 6 NWLR (PT. 199) 501 AND UKU VS. OKUMAGBA & ORS (1974) 3 SC PG. 35.

I hold that contrary to the ruling of the lower Court, United Bank for Africa Plc is a necessary party to the action the subject of this appeal. It is a settled principle of law that where there is an equitable assignment of a chose in action, the assignor must be joined in the event an action is instituted in Court.

In the Appellants Counter-claim they allege that United Bank for Africa Plc. had nothing to assign to the Respondent and also that the Bank owed them some money. The Respondent joined issues with them on this point. If the Appellants’ case had succeeded, the Bank that the Court refused to join as a party would not be bound by the outcome of the case. The Appellants were denied the opportunity to prove their case against the Bank. They were thus denied fair hearing.

It is trite that any proceeding conducted in violation of the principle of fair hearing is null and void ab initio. It cannot be salvaged. See NDUKWE VS. UNION BANK OF NIGERIA PLC (2021) 4 NWLR (PT. 1765) 65; ZENITH PLASTICS INDUSTRIES LTD. VS. SAMOTECH LIMITED (2018) 8 NWLR (PT. 1620) 165; ORUGBO VS. UNA (2002) 16 NWLR (PT.792) 175; CEEKAY TRADERS LTD. VS. GENERAL MOTORS CO. LTD. (1992) 2 NWLR (PT. 222) 132 AND UNIVERSITY OF NIGERIA TEACHING HOSPITAL MANAGEMENT BOARD VS. NNOLI (1994) 8 NWLR (PT. 363) 376. The proceedings conducted by the lower Court in the absence of United Bank for Africa Plc. is null and void and I so hold.

Furthermore, the Appellants alleged that the bank made illegal charges on his account. It is only the bank that can defend this allegation. The Appellants called witnesses to prove their Counter Claim which the lower Court dismissed. The Counter Claim of the Appellants in the main was against the United Bank for Africa Plc. who they claim had nothing to assign or transfer to the Respondent. Failure of the lower Court to grant the application to join the bank denied the Appellants fair hearing and occasioned a miscarriage of justice to them.

If this Court proceeds to exercise its powers under Section 15 of the Court of Appeal Act to rehear the case, the decision of this Court will not be binding on United Bank for Africa Plc. who was not a party to the case at the lower Court as well as this appeal.

The law is that where it is established that there has been miscarriage of justice at a trial, it vitiates the decision reached no matter how well decided. See TYONEX NIGERIA LIMITED VS. PFIZER LIMITED (2020) 3 NWLR (PT. 1710) 104; IROLO VS. UKA (2002) 14 NWLR (PT. 786) 195; ACCESS BANK PLC VS. YERIMA KIDA MEMORIAL CO. LTD (2021) 1 NWLR (PT. 1757) 388 AND OKOMALU VS. AKINBODE (2006) 9 NWLR (PT. 985) 338.

My conclusion on this issue is that it is resolved in favour of the Appellants and against the Respondent. Refusal of the Application to join United Bank for Africa Plc as a party is fatal.

ISSUES 2 AND 3
1) Whether the ex parte orders freezing the bank accounts of the 1st and 2nd Appellants and sealing the house of the 2nd Appellant pending the final determination of the substantive suit were unlawful. (Ground 2 of the Notice of Appeal).
3) Whether the preservative orders granted ex parte by the lower Court did not abate upon delivery of the judgment discharging same. (Ground 3 of the Notice of Appeal).
These two issues relate to an ex parte order granted by the lower Court on 10th of October, 2017 pursuant to a Motion Ex parte filed on behalf of the Respondent. The Appellant’s contention is that Section 49 of the Asset Management Corporation of Nigeria Act, 2010 (as amended) under which the application was brought is only applicable where the debtor is the bonafide owner of the movable and immovable property and not applicable in this case where the 1st Appellant is not indebted to the United Bank for Africa Plc.

He argued that the 2nd Appellant is entitled to the protection of his property as guaranteed under Section 43 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and that the trial Court erred when it refused to set aside the order attaching his property.

He submitted further that the lower Court was wrong when he made the order freezing the 1st and 2nd Appellants’ accounts because there was no evidence that the 1st Appellant was indebted to United Bank for Africa Plc. He relied on the case of NWANKWO & ANOR. VS. ECUMENICAL DEVELOPMENT COOPERATIVE SOCIETY (2007) LPELR–2018 to support his submission.

For his part, learned counsel to the Respondent submitted that the ex-parte orders made by the learned trial Judge were rightly made and the Court was right when he refused to set them aside. He argued the ex-parte order abated upon delivery of the judgment and urged us to resolve the two issues in favour of the Respondent.

I like to commence the resolution of these two issues by reiterating the settled position of the law that there is a difference between an interim order of injunction and an interlocutory injunction. An interim injunction is one granted pending the determination of a Motion of Notice. It is one granted to last until a named date. An interlocutory injunction is one made pending the determination of a substantive suit. See AZUH VS. UNION BANK OF NIGERIA PLC (2014) 11 NWLR (PT. 1419) 580; GROUP DANONE VS. VOLTIC NIGERIA LIMITED (2008) 7 NWLR (PT. 1087) 637; OLUWA GLASS COMPANY LIMITED VS. EHINLANWO (1990) 7 NWLR (PT. 160) 14 AND OBEYA MEMORIAL SPECIALIST HOSPITAL VS. ATTORNEY-GENERAL FEDERATION (1987) 3 NWLR (PT. 60) 325.
In KOTOYE VS CENTRAL BANK OF NIGERIA (1989) 1 NWLR (PT. 98) 419 AT 440, PARAGRAPHS B-C, Nnaemeka-Agu, JSC held as follows:
“So much confusion and conflict appear to have surrounded the use of the expressions “ex parte”, “interim”, and “interlocutory” in the briefs of counsel that I deem it necessary to begin by examining these terms. Indeed, even in decided cases this lack of agreement as to the precise meanings of these words is pretty obvious. At times they are used as if “interlocutory” and “interim” were interchangeable.
In KUFEJI VS. KOGBE (1961) 1 ALL NLR 113 AT 114, an application for an injunction which was fully argued and deliberated upon and in every way had all the attributes of an interlocutory injunction was referred to as interim injunction. In fact “interim” and “interlocutory” were freely used as if they were interchangeable.”

Upon service of the Originating processes on the Appellants, they caused a Statement of Defence and Counter Cclaim to be filed on their behalf. At paragraph 58 thereof they counterclaimed as follows:
“58. WHEREOF the 1st Defendant counter-claims against Claimant as follows:
(a) A declaration that the 1st Defendant is not indebted to Claimant or the United Bank for Africa in the sum of N14,003,448.48 or any sum at all.
(b) A total sum of N61,630,163.61 being total refund due to 1st Defendant from Claimant and UBA Plc from the wrongful, illegal and unprofessional operation of his account no. 1007375432 maintained by 1st Defendant with Apata Ibadan Branch of UBA Plc made up as follows:
i) Total excess and Illegal Charges passed on to his account from July 02 2007-July 28, 2016 as follows:
1) Excess commission on turn over – N55,879.22
2) Excess overdraft interest – N5,164,306.61
3) Illegal charges – 4,095.00
4) Excess 1% Management Fee on OD N5m – N107,500.00
5) Excess .75% Commitment Fees – N37,500.00
6) Illegal 25% Pro Fees on OD 5m – N12,500.00
7) Excess Counter Cheque Charge – N105.00
8) Excess cost of Statement – N630.00
9) Excess Pymt of Perf of Legal Mgge – N300,000.00
10) Illegal placement of Caution on Ppty – N15,000.00
SUB TOTAL – N5,697,515.73
ADD INTEREST ELEMENT
REFUND – N8,871.366.20
N14,568,881.93
11) Total credit paid to Account 7 Interest – N47,061,281.68
TOTAL REFUND CLAIMED – N61,630,163.61
(c) A sum of N20,000,000.00 as General damages for the atrocities committed by Claimant when it obtained an Order Ex-Parte freezing all of 1st Defendants accounts without any reason or lawful reason
(d) A declaration that Claimants have no right to threaten 2nd defendant and the tenants of 2nd Defendants in his property situate at and being Block D, Plot 4 and 5 Oluyedun Layout, Apata Village, Ojoo, Ibadan.
(e) 2nd Defendant Claims General damages in the sum of N25 million.”

The ex-parte application for the freezing of the Appellants’ account is at pages 39 to 75 of the record. It is supported by a 20 paragraphed affidavit wherein the reasons advanced for the freezing of the Appellants bank account and sealing of the 2nd Appellant’s house are stated. See paragraphs 5 to 15 of the Affidavit.

Essentially the reason is that the 1st Appellant is indebted to United Bank for Africa Plc. in the sum of Fourteen Million, Three Thousand and Forty-Eight Naira Forty Eight Kobo and which debt was assigned to the Respondent but remained unpaid despite several demands. That the order was sought and granted to preserve the property used as security for the bank facility.

The Appellants’ case is that they were no longer indebted to United Bank for Africa Plc. having paid the total outstanding on the loan. They claim what was assigned to the Respondent is the illegal charges deducted contrary to Central Bank of Nigerian’s Guide to Bank Charges, Monetary, Credit, Foreign Trade & Exchange Policy Circulars. They claim that the contract between United Bank for Africa Plc. and the Respondent by which the debt was assigned was an illegal contract.

The law is settled that when a contract is ex-facie illegal, the Court would not close its eyes to such illegality even if the illegality is not pleaded. It is the duty of every Court to refuse to enforce such a transaction once it is brought to its attention. See CORPORATE IDEAL INSURANCE LIMITED VS. AJAOKUTA STEEL COMPANY LIMITED FASEL SERVICES LIMITED VS. NIGERIAN PORTS AUTHORITY (2009) 9 NWLR (PT. 1146) 400 AND EKWUNIFE VS WAYNE (WEST AFRICA) LIMITED (1989) 5 NWLR (PT. 122)422.

It is significant to note that the Appellants brought to the attention of the lower Court the fact that the debt assigned to the Respondent has its root in non-compliance with Central Bank regulations. The lower Court ought to have considered this in determining the application to set aside the ex-parte order.

The law is further settled that where a debt is in dispute, the burden is on the Creditor to prove not only that a debt is owed but also the particular amount owed. It follows therefore that a Plaintiff who fails to prove the existence of a debt does not qualify as a Creditor and not entitled to judgment. Courts of law are not charitable institutions and will not give judgment on any claim not proved. See WEIDE & CO. NIGERIA LIMITED VS. WEIDE & CO. HAMBURG (1992) 6 NWLR (PT. 249) 627; NATIONAL BANK OF NIGERIA LIMITED VS. STANDARD CONSOLIDATED DREGING CONSTRUCTION COMPANY LIMITED (1998) 5 NWLR (PT. 548) 144 AND UNION BANK OF NIGERIA LIMITED VS. TROPIC FOODS LIMITED (1992) 3 NWLR (PT. 228)231.

The Appellants dispute the existence of the alleged debt owed United Bank for Africa PLC. The said debt is not due for payment until it is proved to exist. United Bank for Africa Plc was not a party to the suit. Failure to prove the debt in my view was sufficient ground for the lower Court to set aside the ex parte order it made and I so hold.

Now, Section 49 of the Assets Management Corporation of Nigeria Act provides as follows:
“Where the Corporation has reasonable cause to believe that a debtor or debtor company is the bonafide owner of any movable or immovable property, it may apply to the Court before or at the time of filing of action for debt recovery or other like action or at any time after the filing of action and before or after the service of the originating process by which such action is commenced on the debtor or debtor company by Motion ex parte for an interlocutory order granting possession of the property to the Corporation pending the hearing and determination of the debt recovery or other action to abide the decision of such Court.”
To invoke the provision of the above Section the Respondent must prove that the property is owned by the debtor. There must be in existence a debt which must be proved. Where there is a dispute on the existence of the debt, the Respondent cannot activate the provisions of Section 49 of the AMCON Act to seek and obtain an order of Court to freeze the bank account or take possession of the property of the purported debtor. I therefore hold that the lower Court erred when it refused to set aside the ex parte orders it made.

The next question is whether the failure to pronounce on the subsistence of the ex parte order in the judgment was fatal.

It is trite that ex parte orders of injunction are interim in nature. They are made to keep matters in status quo until a named date.

The learned trial Judge in its ruling particularly at page 392 of the record held thus:
“I do hold conclusively that the interim order made by this Honourable Court on the 10th day of October, 2017 is to subsist pending the determination of this case.”

The Court made it clear that the interim order abated when judgment was delivered on 6th of June 2019. The enrolled order is at pages 78 to 82 of the Record. It includes an order granting leave to the Respondent to take interim possession of the pledged properties of the Appellants as well as an order freezing the bank accounts of the Appellants maintained with the named banks.

The interim order made by the lower Court on 10th of October 2017 abated when judgment was delivered.

Issues 2 and 3 are resolved in favour of the Appellants and against the Respondent.

ISSUE 4
Whether the lower Court was right when it held that Exhibits “DE” and “DF” which are the reports prepared by DW11 did not consider the terms and conditions of the credit facility granted to the Appellant.
In arguing this issue, learned counsel to the Appellants submitted it is the primary duty of a trial Court to evaluate evidence and make findings thereon. He relied on the cases of OGOLO VS. OGOLO (2003) 18 NWLR (PT. 852) 494 AND AKINGBEHIN VS. KHALIL & DIBBO TRANSPORT LIMITED (2000) LPELR 3249 (SC) in support of his submission.

He pointed out it is apparent from the pleadings of the Appellants and the evidence led in proof of same that their case is that the account maintained by the 1st Appellant with United Bank for Africa Plc was not properly maintained. He submitted the bank charged excess interest, excess quarterly management charges and excess commission on turn over, commitment fees and counter cheque charges.

He then urged us to hold that the trial Judge failed to do a proper evaluation of the evidence before him and he did not follow the laid down guidelines in the cases of MOGAJI & ORS VS. CADBURY (NIG.) LTD (1985) 2 NWLR (PT. 7) 393 AND ADENIJI VS. ADENIJI (1972) 4 SC 10.

He went on to summarise the evidence of the 1st Appellant as DW1 and that of DW2, the expert witness to argue that if the learned trial Judge had done a proper evaluation of DW2’s report he would have come to a different conclusion. He submitted there was evidence on record which show that United Bank for Africa PLC charged the 1st Appellant’s account in violation of the Central Bank guidelines. He argued that DW2’s evidence was not challenged and the Court should have acted on it. He called in aid of his submissions the case of OLOHUNDE VS. ADEYOJU (2000) 6 SC (PT. 111) 118.

He urged us to hold that the lower Court abdicated it’s role of proper evaluation of evidence and came to a perverse decision. He argued the Appellants adduced sufficient evidence to establish their Counter Claim and that if the trial Judge had properly evaluated the evidence of DW1 and DW2 he would have held that the Counter Claim was proved. He submitted further that DW2 (the expert) demonstrated in his report how he arrived at the sum claimed in the Counter Claim and urged us to allow the appeal.

Arguing per contra Respondent’s Counsel urged us to hold that the Appellants failed to establish their Counter Claim by credible evidence. He relied on the case of ESUWOYE VS. BOSERE (2017) 1 NWLR (PT. 1546) 256 AND ONUOHA VS. OKAFOR (1983) 8 SC 52 to submit that a Counter Claim is a separate action which must be determined on it’s own merit. He submitted further that the 1st Appellant who admitted the debt on Exhibit 12 is estopped from denying the Respondent’s claim.

He argued that the trial Judge in reaching his decision was guided by the salient principles of law laid down in MOGAJI & ORS. VS. ODOFIN (1978) 3 – SC AND OGOLO VS. OGOLO (2003) 18 NWLR (PT. 852) 494.

He argued that contrary to submission made by Appellants’ Counsel that DW2’s evidence was not challenged, the reports prepared by him, Exhibits “DE” and “DF” were discredited and the Respondent also presented Counter Reports, Exhibit K1 and K2 before the Court. He submitted further that the lower Court considered the defence of the Appellants and came to the conclusion they were full of contradictions.

He finally urged us to hold that this appeal is unmeritorious, dismiss same and affirm the judgment of the lower Court.

It is trite that while the duty of evaluation of evidence is primarily that of a trial Court, an Appellate Court would interfere with findings made by the trial Court where such finding is found to be perverse. See GAJI VS. PAYE (2003) 8 NWLR (PT. 823) 583; MAINAGGE VS. GWAMMA (2004) 14 NWLR (PT. 893) 323 AND TUKUR VS. UBA (2013) 4 NWLR (PT. 1343) 90. In SAGAY VS. SAJERE (2000) 6 NWLR (PT. 661) 360 AT 370 PARAS. B–C J. AYOOLA, JSC held as follows: “Certain established principles of law that have always guided our Appellate Courts may be quickly noted. When there are materials before the Judge upon which he had to assess the evidence of a witness, it is not enough for the Judge to say that he believed that witness without proper evaluation of the evidence upon which he based his belief.
Per Ademola CJN in GBADAMOSI VS. AJAO SC 462/66 delivered on June 24th, 1968, quoted from OLADEHIN VS. C.T.M.L (1978) 2 SC 23.
The Court must consider issues joined by properly reviewing the evidence and making proper findings.”

I have taken a close look at the Appellants’ Counter Claim as well as the Amended Statement of Defence to the Counter Claim and there is no doubt that parties joined issues on the indebtedness of the Appellants. The Appellants as Claimants claim they were no longer indebted to United Bank for Africa Plc but it is the bank that owed them. They claim the bank needed to refund some money to them. The Respondent denied this claim but say they took over the debt owed the bank which was to the tune of Eight Million, Six Hundred and Nineteen Thousand, Three Hundred and Twenty Three Naira, Twenty kobo (N8,619,323.20k). They assert that the 1st Appellant indebtedness is still subsisting with accrued interest.

The law is settled that whoever sets out to claim interest and other miscellaneous charges has a duty to adduce both documentary and oral evidence to establish it. See UNITY BANK PLC. VS. AHMED (2020) 1 NWLR (PT. 1705) 364; HABIB NIGERIA BANK LIMITED VS. GIFTS UNIQUE NIGERIA LTD. (2004) 15 NWLR (PT. 896) 408; WEMA BANK PLC. VS. OSILARU (2008) 10 NWLR (PT. 1094)150 AND FIRST BANK OF NIGERIA PLC. VS. MAMMAN (2001) 3 WRN 58.

I have carefully examined the evidence led by the Respondent and the evaluation of same done by the trial Judge and I cannot find any explanation as to how the accrued interest on the overdraft facility came to the sum N8,619,323.20k allegedly owed United Bank for Africa PLC by the Appellants which the Respondent claim it acquired.
The law is that an Appellate Court is at liberty to reassess and reevaluate the evidence on record in the following cases;
1) Where the findings of the lower Court are perverse
2) Where the findings have not been arrived at as a result of a proper exercise of judicial discretion.
3) Where the trial Court has not made a proper use of the opportunity of seeing and hearing the witnesses at the trial.
4) Where the findings were reached as a result of wrong application of some principles of substantive law or procedure.
See OGUNDALU VS. MACJOB (2015) 8 NWLR (PT. 1460) 96; ANYANWU VS. UZOWUAKA (2009) 13 NWLR (PT. 1159) 445 AND OSOLU VS. OSOLU (2003) 11 NWLR (PT. 832) 608.

The central issue in the case before the lower Court is that the Appellants both in their defence to the substantive claim and the Counter Claim dispute the basis for the debt on which the Respondent brought them to Court. They deny the existence of any debt and the right to which the Respondent could exercise its powers under the law to acquire. The lower Court had a duty to evaluate the evidence on record and make a finding on this vital issue but it failed to do so. It failed to evaluate the evidence presented by the Appellants.
It is trite that where a trial Judge has failed in its primary duty to make findings of fact on issues joined on the pleadings and the evidence is such that an Appellate Court cannot make its findings on all the relevant issues, a retrial is the proper order. See EDJEKPO VS. OSIA (2007) 8 NWLR (PT. 1037) 635; OSOLU VS. OSOLU (SUPRA); BAKARE VS. APENA (1986) 4 NWLR (PT. 33) 1; MORAH VS. OKWUAYANGA (1990) 1 NWLR (PT. 125) 225.

In this appeal, the trial Judge failed to make any findings on the central issue before it which is whether the Appellants were indebted to United Bank for Africa Plc at the time the Respondent bought over the debt. I have earlier on held that the refusal of the Application made by the Appellants to join United Bank for Africa Plc as a party to the Counter Claim was fatal and occasioned a miscarriage of justice. I wish to emphasise that the Appellants had a Counter Claim in which United Bank for Africa Plc was a necessary party. The essence of joining a party to an action is to ensure he is bound by the orders made therein.

The case of the Appellants is that he had fully repaid the overdraft granted the 1st Appellant and there was no debt for the Respondent to acquire. Parties are agreed that the overdraft facility was granted to the Appellants by United Bank for Africa Plc. The failure of the lower Court to properly evaluate the evidence on record and make appropriate findings on the central issue in the claim before it makes the findings perverse. The absence of United Bank for Africa Plc makes it difficult to embark on re-evaluation of the evidence on record and enter judgment in favour of the Counter Claimant. This issue Nos. 4 is resolved in favour of the Appellants and against the Respondent.

On the whole, having resolved all the issues in this appeal against the Respondent, it follows that this appeal has merit and should be allowed. It is accordingly allowed. The judgment of the Federal High Court delivered on 6th of June, 2019 in SUIT NOS. FHC/IB/CS/112/2017 is hereby set aside. I order that the case be remitted back to the Federal High Court for re-trial before another Judge. Parties should bear their respective costs.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now, the judgment just delivered by my learned brother, Folasade Ayodeji Ojo, JCA.

I agree that the appeal has merit and I also allow it in the manner set out by my learned brother.
The parties are ordered to bear their respective costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I have had the advantage of reading in advance, the lead judgment of my Lord, FOLASADE AYODEJI OJO, JCA which has just been delivered. I am in agreement with the lucid reasoning and resonating conclusion that the instant appeal has merit and same should be allowed. I wish to add few comments for the purpose of emphasis and in affirmative support of the said lead judgment.

It is trite law that a necessary party is one whose participation in the proceedings is indispensable and who must be joined in an action because, inter alia, complete relief cannot be given to those who are already parties without their joinder. See the case of BUHARI & ANOR V. YUSUF & ANOR (2003) LPELR-812 (SC). In this instant appeal, the United Bank for Africa Plc is a necessary party on the grounds that the alleged illegal deductions from the Appellants’ account can only be defended by the bank, therefore, refusal to grant the Appellants’ application to join the bank by the trial Court is fatal, hence, the proceedings conducted in the absence of the United Bank for Africa at the lower Court is null and void. See the case of OYEYEMI & ORS V. OWOEYE & ANOR (2017) LPELR-41903(SC) and APGA LPELR-45196(SC).

Consequent upon the above and the more elaborate reasons advanced in the lead judgment, I also find that the instant appeal has merit and should be allowed.