MAINSTREET BANK PLC v. DIZENGOFF (WEST AFRICA) NIGERIA LIMITED (2014)

MAINSTREET BANK PLC v. DIZENGOFF (WEST AFRICA) NIGERIA LIMITED

(2014)LCN/7232(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 27th day of May, 2014

CA/YL/30/2013

RATIO

FUNDAMENTALITY OF A COURT’S JURISDICTION

Jurisdiction is very fundamental to any cause or matter. It is the spinal cord of an action, the skeleton that holds up the body of the action. It strikes at the root of any cause or matter and consequently raises the issue of the competence of the court to adjudicate in the proceedings. It should thus be determined at the earliest opportunity when raised. If a court has no jurisdiction to hear and determine an action, the proceedings are a nullity ab initio, no matter how well conducted and decided. A defect in competence is not only intrinsic, but extrinsic to the entire process of adjudication. Thus any defect in competence is fatal to the proceedings. See Alims V UBA (2013) 1 SCNJ 1; Adatayo V Ademola (2010) 4 SCNJ 32; Oloba V Akereja (1988) 3 NWLR (Pt. 84) 508; Skenconsult (Nig.) Ltd V Ukey (1981) 1 SC 6; Madukolu V Nkemdilim (1962) 2 SCNLR 341.

It is also right to say that a court is only competent when a case comes before it by due process of court and upon the fulfilment of any condition precedent to the exercise of jurisdiction. See BASF Nig. Ltd V Faith Enterprises Ltd (2010) 1 SCNJ 223; Our Line Ltd V SCC Nig. Ltd (2009) 7 SCNJ 358; Madukolu V Nkemdilim (supra). PER JUMMAI HANNATU SANKEY, J.C.A.

PLAINTIFF’S PREROGATIVE TO DETERMINE DEFENDANT IN A SUIT

It is settled law that it is the prerogative of a plaintiff to determine the defendants in a suit. The liability of each of the parties to the suit would be determined having regard to the pleadings and evidence led by the claimant in the light of applicable laws. Therefore, in order to determine whether a party is a proper defendant to a suit, all the court needs to do is to examine the claim of the plaintiff before the court. It is the plaintiff’s claim that gives him the right to initiate the action for the alleged wrongful act. If a defendant feels that the outcome of the suit will adversely affect his interest, he can apply to be joined before the matter proceeds to trial. The person to be joined must however be someone whose presence is necessary as a party and the only reason which makes him necessary as a party to the action is that he should be bound by the result of the action which cannot be effectually and completely settled unless he is a party. The determining factors on the issue of joinder are:

(1) Whether the issue that calls for determination cannot be effectually and completely settled unless the party sought to be joined is made a party.

(2) That his interest will be irreparably prejudiced if he is not made a party.

See Bello V INEC (2010) 3 SCNJ 127; Ajayi V Jolayemi (2001) 10 NWLR (Pt. 722) 516; Trustees of AMORC (2000) 10 NWLR (Pt. 676) 522. per JUMMAI HANNATU SANKEY, J.C.A.

WORDS AND PHRASES: NEGLIGENCE

Black’s Law Dictionary, 8th Edition, at pages 1062-1063 sets out twenty-eight (28) types or categories of negligence. It also defines negligence generally as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly or wilfully in disregard of others’ rights. per JUMMAI HANNATU SANKEY, J.C.A.

WHETHER NEGLIGENCE IS A QUESTION OF FACT OR LAW

It is settled that negligence is a question of fact and not of law, and no case is exactly like the other. So, each case must be decided in the light of the facts pleaded and proved. It is also settled that a plaintiff in an action for negligence, is required to state or give particulars of negligence alleged and to recover on the negligence pleaded in those particulars. It is not sufficient for a plaintiff to make a blanket allegation of negligence against a defendant on a claim of negligence without giving full particulars of the items of negligence relied on as well as the duty of care owed to him by the defendant. See Kayo V UBA Ltd (1997) 1 SCNJ 41 @ 42. per JUMMAI HANNATU SANKEY, J.C.A.

WHETHER IT IS NEEDFUL TO CALL ADDITIONAL WITNESSES IN DISPOSING AN ISSUE OF JURISDICTION

It must also be said that the issue of jurisdiction, when raised, must be such that must be capable of being disposed of without the need to call additional evidence. The issue of jurisdiction, being radically fundamental to adjudication in the Nigerian Legal System, must be properly raised before the court can rightly entertain the point. Where the question involves a substantial point of law, substantive or procedural, and it is apparent that it will not be necessary to open up further evidence which would affect the decision, the court has a duty to allow the question to be raised and points taken so as to avoid an apparent miscarriage of justice. See Agbiti V Nigerian Navy (2011) 2 SCNJ 1 @ 22 per Adekeye, JSC. per JUMMAI HANNATU SANKEY, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

Between

MAINSTREET BANK PLC Appellant(s)

AND

DIZENGOFF (WEST AFRICA) NIG. LTD Respondent(s)

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is predicated on the Judgment of the Adamawa State High Court of Justice delivered on 26th September, 2012 in Suit No ADSY/44/2007. The Respondent, (as Plaintiff), filed a Writ of Summons on 4th September, 2003, wherein it claimed from the Appellant Bank, (as Defendant), the sum of N39, 508,156.00 plus interest thereon as damages for negligence by the Defendant Bank in the operations of the Plaintiff’s two (2) accounts at the Defendant Bank’s Yola branch.

Briefly put, the facts of the case are that the Plaintiff, a business establishment, was, for over 10 years prior to the institution of the suit, a customer of the Defendant Bank at its Lagos, Ibadan and Yola branches. It opened a Remittance Account at the Appellant Bank’s Yola Branch for the purpose of its business in Adamawa State and its environs. By a letter dated 22-05-91 written from the Plaintiff’s Head office in Lagos and sent to the Appellant Bank’s Branch at No. 78/84 Kofo Abayomi Avenue, Apapa-Lagos, the Plaintiff requested the Defendant Bank to instruct its Jimeta-Yola Branch to open a Remittance Account in the name of the Plaintiff. Among other instructions, the Plaintiff informed the Defendant Bank’s Branch at Kofo Abayomi Avenue to supply its Jimeta-Yola Branch with the Plaintiff’s signatories for the operational purposes of the said account, and the Defendant Bank complied. The signatories on the mandate were two of the Plaintiff’s senior officers who operate the Plaintiff’s accounts with the Defendant Bank in all their branches.

The Plaintiff wrote another letter dated 15-10-93 to the Defendant Bank at its Yola Branch instructing that an Imprest Account be opened and operated solely by one Musa Ahmed Abdulkadir, for the smooth administration of the Plaintiff’s Yola Branch office. The Defendant again complied. Here again, the mandate was signed by two senior officers of the Plaintiff who operate all the accounts of the Plaintiff with the Defendant Bank.

The Remittance Account, from the letter instructing the Defendant Bank to open the account, was intended to be used only to receive deposits on behalf of the Plaintiff from its customers, and to transfer any balance therein on the Wednesday of every week to the credit of the Plaintiff’s Account at the Defendant Bank’s Branch at Kofo Abayomi Avenue, Apapa, Lagos. The Imprest Account, on the other hand, was to be operated based on the conditions stated in paragraph 2 of the Plaintiff’s letter instructing the opening of the said account, i.e. to pay into the said account any cheques issued by the Plaintiff’s Head office. Then the signatory of the Plaintiff at the Yola office would withdraw funds from this Imprest Account for the running of the Plaintiff’s Yola office. However, the Plaintiff alleged that, contrary to the above conditions, it subsequently discovered that cheques and cash, (being payment for goods bought from the Plaintiff by various persons and corporate bodies issued in the name of the Plaintiff and meant to be paid into the Remittance Account), were lodged into the said Imprest Account and withdrawn by an unauthorised person, in breach of the mandate from the Respondent, thus causing it losses totalling N39, 508,156.00.

The Plaintiff, in an attempt to prove its case, called one sole witness and tendered four (4) exhibits, while the Defendant Bank also called one lone witness and tendered six (6) exhibits. Thereafter, the learned trial Judge, in his Judgment, found in favour of the Plaintiff. It held, inter alia, that the Defendant Bank was negligent in the operation of the Plaintiff’s accounts by merging the two accounts and allowing a person who was not mandated by the joint signatories of the Plaintiff, to operate the accounts. Judgment was thus entered for the Plaintiff in the sum of N39, 508,156.00 (Thirty Nine Million, Five Hundred & Eight Thousand, One Hundred & Fifty Six Naira) only plus 5% interest thereon, pre and post Judgment. The Defendant Bank, being aggrieved by this decision, appealed to this Court on five (5) Grounds. Subsequently, it sought and was granted leave on 20-11-13 to amend its Notice of Appeal, wherein it introduced a 6th Ground of Appeal.

On 24th March, 2014, when the Appeal was called up for hearing, Mr. G.C. Adikwu, learned Counsel for the Appellant, relied on the Amended Notice of Appeal filed on 15-11-13, but deemed properly filed and served on 20-11-13 by an order of this Court. He adopted both the Appellant’s Brief of argument and the Appellant’s Reply Brief of argument, (the latter of which responded to the preliminary objection raised and argued in the Respondent’s Brief of argument), and relied on the arguments contained therein as the Appellant’s arguments in this Appeal. He urged the Court to allow the Appeal and set aside the decision of the lower Court.

In like vein, Mr. Hassan G. Maidawa, learned Counsel for the Respondent, appearing with Miss J.A. Bwangali and Miss H.A. Ngbale, adopted the Respondent’s Brief of argument filed on 20-12-13, wherein he had also raised and argued a preliminary objection to the competence of Ground six (6) in the Amended Notice of Appeal. He relied on the arguments contained in the Brief, in respect of both the preliminary objection and the main Appeal, as the Respondent’s arguments in this Appeal. He urged the Court to dismiss the Appeal as lacking in merit.

In the Notice of preliminary objection contained at pages 3-4 of the Respondent’s Brief of argument, the grounds for the objection were stated as follows:

(i) The Appellant by the said Ground 6 is raising a fresh issue before the Court of Appeal which was not raised before the trial Court;
(ii) The Appellant cannot raise a fresh issue to wit: non-joinder of parties before the Court of Appeal without first obtaining leave of the Court of Appeal to do so.

In arguing the objection, learned Counsel for the Respondent submits that Ground 6 of the Appellant’s Amended Notice of Appeal, which raises the issue of non-joinder of parties, is incompetent, being a fresh issue not raised before the trial Court and in relation to which no leave of the Court of Appeal was sought and obtained. He relies on the case of Adelakun V Oruku (2006) 11 NWLR (Pt. 992) 629 @ 641-642, paras D-F. The Court was thus urged to strike out Ground 6 of the Appellant’s Ground of Appeal.

In his response, learned Counsel for the Appellant submits that the said ground challenges the jurisdiction of the lower Court on the ground of lack of proper parties before it. He argues that the issue of proper parties goes to the jurisdiction of the Court and relies on Royal Chemical and Allied Products Nig. Ltd. V The Governor of Oyo State (2009) All FWLR (Pt. 458) 326 @ 334 paras G-H.

Counsel argues that, in the instant case, the key players in the events that gave rise to this suit, being the Respondent’s employees, were not made parties to the suit before the lower Court; hence the Appellant’s argument that the proper parties were not before the Court. This fact, he argues, has affected the jurisdiction of the lower Court and he urged the Court to so hold.

While conceding that where an Appellant is raising a fresh issue on Appeal, he must obtain the leave of Court to do so, Counsel submits that no leave is required when the fresh issue being raised touches on the jurisdictional competence of the lower Court. He relies on Mudasiru V Abdullahi (2011) All FWLR (Pt. 574) 129@143-144, paras G-A. Counsel further argues that, in the instant case, the said Ground six (6) of the Appellant’s Notice and Grounds of Appeal challenges the jurisdiction of the lower Court to hear the matter due to the absence of proper parties before it. Hence, he contends, the Appellant need not have sought and obtained the leave of Court before raising the issue. He urged the Court to so hold, to dismiss the Respondent’s Notice of Preliminary objection and to proceed to hear and determine the Appeal.

Since from the arguments of Counsel it is the competence of the suit before the trial Court that is being challenged, the jurisdiction of the trial Court to entertain and determine an incompetent action is brought into question. It is long settled that the issue of jurisdiction is a threshold one which can be taken at any stage of the proceedings; even before the apex court for the first time. It can be raised by any of the parties or by the court suo motu. Jurisdiction is very fundamental to any cause or matter. It is the spinal cord of an action, the skeleton that holds up the body of the action. It strikes at the root of any cause or matter and consequently raises the issue of the competence of the court to adjudicate in the proceedings. It should thus be determined at the earliest opportunity when raised. If a court has no jurisdiction to hear and determine an action, the proceedings are a nullity ab initio, no matter how well conducted and decided. A defect in competence is not only intrinsic, but extrinsic to the entire process of adjudication. Thus any defect in competence is fatal to the proceedings. See Alims V UBA (2013) 1 SCNJ 1; Adatayo V Ademola (2010) 4 SCNJ 32; Oloba V Akereja (1988) 3 NWLR (Pt. 84) 508; Skenconsult (Nig.) Ltd V Ukey (1981) 1 SC 6; Madukolu V Nkemdilim (1962) 2 SCNLR 341.
It is also right to say that a court is only competent when a case comes before it by due process of court and upon the fulfilment of any condition precedent to the exercise of jurisdiction. See BASF Nig. Ltd V Faith Enterprises Ltd (2010) 1 SCNJ 223; Our Line Ltd V SCC Nig. Ltd (2009) 7 SCNJ 358; Madukolu V Nkemdilim (supra). Ordinarily, a fresh issue can only be raised on appeal with the leave of court sought and obtained. Nevertheless, an appellant is permitted to raise the question of jurisdiction on appeal, even for the first time, without the leave of court. See Royal Chemical and Allied Products Nig. Ltd V Governor of Oyo State (2009) All FWLR (Pt. 458) 326 @ 334 paras G-H, where this Court held thus:
“The issue of proper parties would affect the jurisdiction of the court as it goes to the foundation of the suit and it can be raised in limine. Where the proper parties are not before it the court lacks the jurisdiction to hear the suit.”
It must also be said that the issue of jurisdiction, when raised, must be such that must be capable of being disposed of without the need to call additional evidence. The issue of jurisdiction, being radically fundamental to adjudication in the Nigerian Legal System, must be properly raised before the court can rightly entertain the point. Where the question involves a substantial point of law, substantive or procedural, and it is apparent that it will not be necessary to open up further evidence which would affect the decision, the court has a duty to allow the question to be raised and points taken so as to avoid an apparent miscarriage of justice. See Agbiti V Nigerian Navy (2011) 2 SCNJ 1 @ 22 per Adekeye, JSC.
Consequent upon the foregoing, I find that the Appellant does not need the leave of Court to raise the issue of jurisdiction now being raised as it can be raised at any stage and in any manner. It is for these reasons that I find the preliminary objection raised to the competence of Ground six (6) in the Amended Notice & Grounds of Appeal as baseless and without merit. It is accordingly overruled.

In respect of the Appeal, while the Appellant formulated six (6) issues for determination, the Respondent formulated one sole issue. Upon a careful scrutiny of the Grounds of Appeal vis-a-vis the issues formulated by the parties, I do hereby distil the following two (2) issues for a proper, effectual and complete resolution of all the issues thrown up by the Appellant’s Grounds of Appeal:

1. Whether the Respondent proved that the Appellant was negligent in handling its two (2) accounts, thus making the Appellant Bank liable to the amounts claimed. Grounds 1-5.
2. Whether the failure to join the employees as necessary parties to the suit robbed the trial Court of its jurisdiction to hear and determine the action. Ground 6.

Issue 1: Whether the Respondent proved that the Appellant was negligent in handling its two (2) accounts, thus making the Appellant Bank liable to the amounts claimed (Grounds 1-5).

On issue 1, learned Counsel for the Appellant submits that the learned trial Judge erred in law when he raised the issue of merger of the Respondent’s two accounts, i.e. the Remittance Account and the Imprest Account, suo moto. He also contends that the trial Court erred when, without calling on parties to address the Court, it held that the two accounts of Respondent with the Appellant Bank were unlawfully merged. He submits that the Appellant Bank, in its Statement of Defence as well as in its final address to the lower Court, argued that the Respondent’s agents discarded the use of the Remittance Account in favour of the Imprest Account, and that this fact was not denied by the Respondent. He contends that the Appellant never merged the two different accounts of Respondent, but have rather discarded the Remittance Account in favour of the Imprest Account.

Counsel further submits that assuming, but not conceding, that the two accounts were merged, there was nothing, express or implied, that could preclude the Appellant from merging the two accounts. He argues that, if even they did, as was held by the learned trial Judge, such a merger cannot be held to be unlawful, and relies on FBN Ltd V Moba Farm Ltd [2005] 8 NWLR (Pt. 928) 492 @ 516 paras A-D.

Furthermore, in respect of whether or not a Court can suo moto raise an issue, as it raised the issue of merger of accounts in this case, Counsel submits that a trial Court can raise an issue suo moto, but must call on parties to address it on the issue before pronouncing on it. He therefore submits that the failure of the trial Judge to call on parties to address him on the issue amounted to a denial of fair hearing. He argues that on this alone, the Appeal ought to be allowed and relies on University of Calabar V Umoh (2011) All FWLR (Pt. 589) 8197@1202, paras E-P & para H.

Counsel further submits that the Appellant was not negligent in the discharge of the duty of care owed the Respondent. He relies on Diamond Bank V Partnership (2009) 12 SCNJ 32 for the definition of Negligence as quoted from Black’s Law Dictionary.

Furthermore, Counsel submits that the learned trial Judge erred in law when he held that Exhibits 8, 9, & 11 do not contain any authority, express or implied, authorizing M.A. Abdulkadir to introduce the person in Exhibits 9 & 11 to the Appellant. It is Counsel’s submission that Exhibit 8 impliedly empowered the said M.A. Abdulkadir to introduce Daniel Bodam, being the man in-charge of the Respondent’s operation in Yola and who was proceeding on a course.

In his response, learned Counsel for the Respondent submits that the action of the Respondent against the Appellant Bank is squarely rooted in the tort of negligence. He submits that there are three essential ingredients of negligence, to wit:

(a) The existence of a duty to take care owed to the complainant;
(b) Failure to attain that standard of the care (or breach of duty of care) prescribed by Law;
(c) Damages suffered by the complainant which must be connected with the breach to care.

For these, he relies on UBA Plc V Ogundokun (2009) 6 NWLR (Pt. 1138) 450 @ 486-487, paras G-A.

Learned Counsel submits that negligence, as a special claim in tort, is a question of fact and can be inferred from the entire circumstances of a case. He relies on Haston Nig. Ltd V ACB Ltd (2002) 7 SCNJ 376 @ 393 & 394; & STB Ltd V Anumnu (2008) 14 NWLR (Pt. 1106) 125 @ 150 paras E-F, to submit that the Respondent, being a customer of the Appellant bank, the latter owed a duty of care, the breach of which could give rise to an action in damages. He submits further that the legal relationship between a bank and its customer is founded on contract, and this contractual relationship imposes a duty of care on the bank a breach of which will impose on the bank a liability of negligence.

Counsel refers to Paragraph 5 of the Plaintiff/Respondent’s Amended Statement of Claim wherein it gave the particulars of negligence upon which it was relying. Counsel contends that the Appellant and the Respondent entered into a contractual relationship which created a legal obligation and a duty of care on the Appellant Bank, which if breached, could lead to damages being claimed by the Respondent from the Appellant Bank.

He further submits that the Respondent, as Plaintiff before the trial Court, stated in both its pleadings and canvassed through the evidence of its sole witness, the purpose for which it opened the two accounts with the Appellant and how the money in each account should be dealt with, especially as to the matter of who should make withdrawals from its accounts. Counsel submits that the Respondent gave specific instructions, by way of a mandate, to the Appellant Bank that only one Mr. Abdulkadir could make withdrawals from its Imprest Account, while all monies in the Remittance Account should be transferred to the Respondent’s other accounts in Lagos, weekly.

Counsel contends that the Appellant, instead of complying with the instructions as agreed between the parties, allowed a third party to operate its account. Counsel submits that, rather than this being a management issue of the Respondent, as canvassed by the Appellant, it was the duty of the Appellant Bank to comply with the Respondent’s mandate given to it.

Counsel further submits that the action of the Appellant Bank was clearly negligent as the Appellant Bank was aware, and admitted under cross-examination through its sole witness, that a mandate by the Respondent is always necessary and carries two signatories. He argues that Exhibit 1 represents the letter of instructions from the Respondent to the Appellant Bank. The Imprest Account was a petty cash account used for the maintenance and day-to-day running of the business of the Respondent at Yola whilst the Remittance Account was for money deposited for the purchase of the Respondent’s products at Yola, and this was the testimony of PW1 at the trial Court.

Counsel submits that the negligence by a banker envisages a situation where the banker fails to carry out the express instruction of its customer, as in the instant case where the Appellant Bank is evidently aware that it is only by a mandate that the Respondent can give the Bank an instruction in relation to a change of signatory in the Respondent’s account. He refers to the testimony of DW1 at pages 106-108 of the Record of proceedings. Counsel submits that it is evident from the admission of the witness that the Appellant Bank breached its duty of care to the Respondent. He contends that Bank’s action was nonchalant and indifferent. He therefore further contends that the Appellant Bank was grossly negligent in the discharge of the duty of care it owed the Respondent, and relied on the decision of the Supreme Court in Nigeria Port Plc V BP PTE Ltd (2012) 18 NWLR (Pt. 1333) 454 @ 485, paras A-B for the definition of Negligence. Counsel submits that it is a banker’s duty to pay out money from a customer’s account only according to a customer’s mandate. He relies on Union Bank V Adediran (1987) 1 NWLR (Pt. 47) 52.

On the issue merger, Counsel submits that the learned trial Judge used the word rather loosely, as is evident from his Judgment, (at page 133 lines 7-10 and page 134 lines 1-26 of the Record). He argues that the learned trial Judge’s meaning, as demonstrated in the words used in the Judgment, is that the use of the two accounts as a single account by an unauthorised party, for transactions that had hitherto been kept separate, (on Respondent’s instructions), was contrary to the mandate given by the Respondent.

Counsel contends that the evaluation of the evidence by the learned trial Judge showed that the accounts were “merged” by the discarding or abandonment of the operation of the one in favour of the other by the Appellant. He submits that the analysis by the learned trial Judge cannot be faulted. However, he argues that even if it is, it has not occasioned any miscarriage of justice.

Counsel further submits that the learned trial Judge did not raise the issue of the merger of the two accounts of the Respondent with the Appellant Bank suo motu. He argues that Counsel to the Respondent Plaintiff) had, in its final written address before the trial Court, (at page 22 of the printed Record), raised the issue of combining of the two accounts of the Respondent by the Appellant, to which the Appellant Bank ought to have replied, but instead it chose not to. He contends that the Appellant Bank, by implication conceded the point.

Furthermore, Counsel submits that the Appellant was not on a strong wicket when it argued that the Bank reserves the right to merge accounts, as this is not the case in every situation. He relies on Agyu V Malami (1992) 9 NWLR (Pt. 264) 254 para G; BON Ltd V Akintoye [1999] 12 NWLR (Pt. 631) 392.

However, assuming without conceding that the trial Court Judge had used the word “merger” in his Judgment, Counsel submits that it can be treated by this Court as a slip or mistake of the Judge which can be corrected, as it does not in any way affect the substance of the decision of the trial Court or occasion a miscarriage of Justice. Counsel submits that the law is trite that not every accidental slip or mistake by a trial Court will result in the decision being set aside.

Such an error that will result in a decision being set aside must be of a material nature that has eroded the foundation of the decision and it must be demonstrated to have substantially affected the decision. Reliance is placed on Adeogun V Fasogbon (2011) 8 NWLR (Pt. 1250) 427; Ebenigbe V Achi (2011) 11 NWLR (Pt. 1230) 65 @ 80, paras A-C; Ariolu (2011) NWLR (Pt. 1258) 2888 @ 15 paras D-G; Air Liquid Nig. Plc V Nnam (2011) 9 NWLR (Pt. 1251) 61 @ 78 paras G-H. He therefore urged the Court to hold that no substantial miscarriage of Justice has been demonstrated by the Appellant to have been occasioned.

Counsel additionally submits that a person on whom power is delegated cannot sub-delegate the same power and relies on NNPC V Trinity Mills Ins. Brokers (2003) 3 NWLR (Pt. 825) 534 @ 397 paras H-B, 397 paras F-H to invoke the Latin maxim delegatus non potest delegare. He submits that Exhibit 8 represents the only mandate by the Respondent to the Appellant Bank in respect of the Imprest account and it did not in any way authorise Mallam Musa Abdulkadir to introduce any other person as a signatory to the Respondent’s accounts.

Moreover, Counsel submits, it is also trite that only a party to a contract can sue and be sued on it. The unauthorized persons who dealt with the Respondent’s account were not parties to the contract, and that gave rise to the action for negligence between the Appellant Bank and the Respondent. He submits that a stranger to a contract, even if a beneficiary, cannot enforce it. Reliance is placed on Ironbar V FMF (2009) 15 NWLR (Pt. 1165) 506 @ 38 paras C-D. Thus, he urged the Court to dismiss the Appeal with ignominy.

Findings

In the instant case, the Respondent clearly pleaded negligence and gave particulars of the items of negligence as follows at pages 47-48 of the Record:

“5. The Plaintiff avers that between December, 2000 and January, 2003 the Defendant negligently allowed the Plaintiff’s Account No. 0261017521614 to be operated by an unauthorised signatory thus causing the Plaintiff a loss of N39, 508, 156.00.

Particulars of negligence:-

(i) The mandate file of the Plaintiff at its Branch from which the Yola Account was opened, had at least 2 signatories to the Account;
(ii) At the time of opening the remittance account, there were 2 signatories to the mandate for the account for the account to be operated by a specified signatory;
(iii) When the new signatory was introduced he was not introduced by the 2 signatories on the mandate;
(iv) Allowing an ‘imprest account’ to be operated as a ‘remittance account.'”

The Appellant Bank does not deny that it received Exhibits 1, 2 & 8. These exhibits are the mandates from the Respondent for the opening and the operation of its Remittance Account in Yola, its Petty Cash & Imprest Account in Ibadan, and its Imprest Account in Yola. While the mandate in the Exhibit 1 was issued by one E. Arad and Ekemezie Okoye, the Respondent’s Managing Director and Assistant Chief Accountant respectively, Exhibits 2 & 8 were issued by Y. A. Cohen and Ekemezie Okoye, the Respondent’s Director of Operations and Assistant Chief Accountant respectively. These mandates gave explicit instructions to the Appellant Bank as to the persons duly authorised to be signatories, and therefore authorised to operate the accounts of the Respondent, (as referred to in the mandates), in the Appellant Bank. For clarity of argument and ease of reference, the relevant portions of contents of Exhibits 1 and 8 are set out hereunder:

Exhibit 1:

“The Manager
Afribank Nigeria Ltd
78/84 Kofo Abayomi Avenue
Apapa
Dear Sir,

OPENING OF REMITTANCE ACCOUNT FOR DIZENGOFF W.A. (NIG) LTD., APAPA AT AFRIBANK (NIG) LTD; JIMETA, GONGOLA STATE.

We are writing to request you to please instruct Afribank (Nig) Ltd, Jimeta Branch, Gongola State to open a Remittance Account in the name of Dizengoff W.A. (Nig) Ltd, 28 Creek Road, P.O. Box 340, Apapa.

This Account is ONLY to receive deposits on behalf of Dizengoff W.A. (Nig) Ltd; and transfer any balance in it every Wednesday of each week to the credit of Dizengoff W.A. (Nig) Ltd; Current A/C No. 36000478U at Afribank (Nig) Ltd; Kofo Abayomi Avenue, Apapa.

You should also supply them with our signatories now with you for operational purposes.” (Underlining supplied for emphasis)

Exhibit 8:

“The Manager
Afribank Nigeria Plc
Jimeta Branch
Yola
Dear Sir,

RE: MR. MUSA AHMED ABDULKADIR

The bearer, Mr. Musa Ahmed Abdulkadir, is our new Branch Manager for Yola. He takes over from our former Branch Manager, Mr. Waziri Ahmadu, who has seized (sic) to be in the services of our Company.

We are writing to request you to extend to Mr. M.A. Abdulkadir, your usual co-operation as you did to our former Branch Manager.

You should please allow Mr. M.A. Abdulkadir to open and operate an Imprest Account for the Company which he (Mr. M.A. Abdulkadir) will be the sole signatory on it for smooth administration of our branch.” (Underlining supplied for emphasis)

The signatories of the Respondent, as supplied in the ‘Signature Card’ of the Appellant Bank, are in evidence as Exhibit 7. For further clarity, the contents of Exhibit 7 are set out hereunder thus:

“N.B:- 1) ALL BANKING DOCS NEED 2 (TWO) SIGNATORIES
2) COMBINATION OF TWO A SIGNATORIES IS ACCEPTED
3) ONE B SIGNATORY ALWAYS IN CONSIDERATION WITH ONE A SIGNATORY

CURRENT ACCOUNT

SIGNATURE CARD        A/C NO 36 000168
NAME          DIZENGOFF W.A. (NIG) LTD
OCCUPATION    AGRIC/POULTRY, RADIO COMM EQUIP, ELEC/ELEC AIRCON, ASSEMBLYING, GEN. GOODS WHOLESALE DISTRIIBUTION
ADDRESS       28 CREEK ROAD, P.O. BOX 340, APAPA
DATE OPENED     Updated 2/9/92
…………………………………….
…………………………………….
AUTHORISED SIGNATORIES
GROUP A
MR. A. ZAHAVI
MANAGING DIRECTOR          ……..signed………
MR. Y.A. COHEN
DIRECTOR OF OPERATIONS       ……..signed……….
GROUP B
MR. A.O. DADA
CHIEF ACCOUNTANT            ……..signed………
MR. E. OKOYE
ASSISTANT CHIEF ACCOUNTANT          ………signed……..
SIGNATURES AUTHENTICATED BY
A, A OR A & B
BUT NOT B B”

It is significant that DW1, the Business Relationship Manager, who was the sole witness presented by the Defendant Bank, (now Appellant Bank), testified on behalf of the Appellant Bank at pages 105-109 of the printed Record. He essentially admitted that the Appellant received complete instructions via mandates in the Exhibits 1 and 8 from the Respondent, yet it acted on a letter from M.T. Abdulkadir allowing Daniel Bodam to wrongfully operate the Respondent’s accounts. Under cross examination he explained the purpose and importance of a mandate in relation to the operation of a customer’s account thus:

“A mandate in relation to opening of an account is an agreement that may exist between customer and the back (sic) for purpose of withdrawal only… The mandate in Exhibits 1 and 2 were given from Lagos. Exhibit 8 which is a mandate and signed by two signatories is also from Lagos. The mandate given by plaintiff to defendant in Exhibit 8 is to open an account on behalf of the plaintiff to be operated by persons designed (sic) in Exhibit 8. In Exhibit 1, 2 and 8 there are always two signatories to the mandate. I agree that nowhere was Abdulkadir authorized by the plaintiff to authorize or introduce any person to operate any amount (sic).”
(Underlining supplied for emphasis)

This viva voce evidence says it all. It is hearing from the horse’s mouth, as it were. The Defendant’s only witness before the trial Court, who was also a person in authority as its Business Relationship Manager, who is presumed to be knowledgeable about the agreements between the Respondent and the Bank, by this testimony, essentially admitted that the Appellant Bank acted in breach of its agreements with the Respondent as set out in Exhibits 1 and 8, and also in breach of its duty of care to the Respondent. Consequently, based directly on the evidence before it, the trial High Court found the Appellant negligent in allowing unauthorised persons to operate the Respondent’s accounts in clear contravention of the instructions in its mandates. There is ample evidence that the Appellant disregarded clear directives of the Respondent on the signatories to its account and the use of the accounts.
The lower Court therefore acted quite rightly when it found in favour of the Respondent on the facts in evidence before it. I do so find.

Furthermore, it is undisputed on the facts presented in this case that the Plaintiff in its two (2) mandates in Exhibits 1 & 8, (reproduced earlier in the body of this Judgment), left written instructions with the Defendant Bank that:

a. A Remittance Account be opened for its Yola office at the Yola branch of the Bank for the purpose of payments into the account by its customers in Yola and environs for goods and services received;
b. The amounts standing to the credit of the Remittance Account be transferred into the Respondent’s account in the Appellant’s Lagos Branch every Wednesday of each week;
c. The signatories to this Remittance Account were to be its signatories as spelt out in its Signature Card, Exhibit 7.
d. An Imprest Account be opened solely for the day to day smooth running of the Respondent’s office at the Appellant Bank’s Yola Branch;
e. The sole signatory of the Imprest Account was to be M.A. Abdulkadir.

Clearly therefore the Appellant had notice that the purpose for opening the Imprest account was only for the day to day running of the Yola office, and not for the transfer of monies from the Remittance Account to the Imprest Account. It also had notice that, by the clear instruction in the mandate issued by the Respondent, (Exhibit 8), and signed by its usual authorised signatories, (as indicated in Exhibit 7), that the only authorised signatory to the Imprest Account was M.A. Abdulkadir. The said M.A. Abdulkadir had no authority to countermand the mandate legitimately issued by the Respondent by mere letters, (Exhibits 9 and 11), as opposed to the mandate in Exhibit 8 properly issued by the Plaintiff through its designated and authorised signatories. This much the DW1 admitted under cross-examination. By the same token, Daniel A.
Bodam had no authority to operate the Imprest Account and to withdraw money at will there from. The signature card, (Exhibit 10), wrongly issued by the Appellant Bank in favour of the said Daniel Bodam following the unauthorised letters of M.A Abdulkadir, (Exhibits 9 and 11), notwithstanding. As a certified banker, prudence dictates that the Appellant Bank should have cross-checked and cleared with its client before preferring to act on the said letters instead of on the usual proper mandate from its client. By failing to do so, the Appellant Bank failed in its duty of care owed to the Respondent, and thus negligently caused the Respondent colossal pecuniary losses.

On the totality of the evidence therefore, there is no doubt that acts of negligence pleaded were clearly established against the Appellant Bank. Its failure to obey the mandates of the Respondent is a breach of the duty of care owed to the Plaintiff with whom existed a contract to operate it accounts with the Bank in the manner agreed upon. The Appellant Bank is under a duty to exercise reasonable care and skill in regard to the affairs of its customers. The Respondent, being its customer, the Appellant Bank was expected to exercise reasonable care and skill in ensuring that its accounts were operated firmly in compliance with its instructions in its mandates.

The principle of law is that a bank has a duty to exercise reasonable care, diligence and skill in carrying out its customers’ instructions. This duty extends over a whole range of banking business within the contract with the customer. See the Supreme Court decisions in Diamond Bank V Partnership Investment Co. Ltd (2009) 12 SCNJ 322; Agbanelo V UBN Ltd (2000) 4 SCNJ 353; (2000) 7 NWLR (Pt. 666) 534 @ 550.
A prudent banker would never ignore the mandates of the Respondent as in the Exhibits 1, 2 and 8 before the lower Court. Negligence implies want of care as would be expected of a reasonable man to exercise in the circumstances. Where clear instruments are given to a bank on how and by whom a customer expects his account to be handled, the bank is expected to strictly comply with them. Prudence also demands that the Appellant Bank ought to have cleared from its customer, the Respondent, when it received instructions from a person who was not a signatory in the mandate to the Bank. Rather than do that, the Appellant Bank went on to serially deal with the illegitimate signatories to the account and, in the process, allowed unauthorised monies to be withdrawn from the Respondent’s account, thus causing a huge and unwarranted loss to its client. Surely, it is only legitimate for the client to expect that its banker would apply every diligence and caution to ensure that its instructions in the mandates it issued would be complied with and enforced. Certainly, it cannot be said that the Appellant acted bona-fide and without negligence.
The Respondent, as much as it was up to them, did all within its power to avoid the fraudulent and/or wrongful use of and withdrawal of monies from its accounts by issuing mandates to the Appellant Bank. However, the action of the Appellant Bank made nonsense of the purpose of giving it the mandates as in the Exhibits 1 and 8. In the circumstances, it is difficult to hold that the Appellant Bank had exercised a due amount of care to the Respondent in complying with its instructions as contained in its mandates, especially Exhibit 8 thereof, and in the operation of its accounts domiciled in the Appellant Bank.
I entirely agree with learned Counsel for the Respondent that it is a banker’s duty to pay out money from a customer’s account only according to a customer’s mandate. A banker is, in contract and in duty, bound to obey the customer’s mandate once it is found to be in order and there is no legal disability stopping the Bank from obeying the mandate given. When a banker thus acts contrary to the mandate of his customer, he will be acting in breach of his contractual obligation and at his own peril. See I. J Gooldface-Irokalibe in his book “Law of Banking in Nigeria”, 1st Edition at page 2007, referred to by Counsel for the Respondent. Thus, in Union Bank V Adediran (1987)1 NWLR (Pt. 47) 52, where the Appellant paid out money from the Respondent’s Church account on the strength of an unauthorised signature, the bank was held liable for paying without a valid mandate.
The basis of liability in the instant case is the failure of the Appellant Bank to exercise reasonable care and diligence to faithfully abide by the instructions in the mandates given to it. If there had been cogent evidence, which the trial Court accepted, that the Respondent, via its authorised signatories in its mandates, had countermanded its earlier instructions, then the basis of negligence would have been displaced. However, that is not the case. Instead, the evidence available from the Record discloses that the letter, which the Appellant Bank based its imprudent decision to wrongfully allow Daniel Bodam to operate the Respondent’s Imprest Account, was issued by another unauthorised person, M.A. Abdulkadir. It is really difficult to see how the Appellant Bank could have escaped liability in this case after the Plaintiff clearly established that the Appellant Bank failed to abide by the terms of the mandate in Exhibit 8, issued to it by the Plaintiff to the effect that the Imprest account was only to receive monies from the Respondent and the account was to be operated by only one signatory, M.A. Abdulkadir. The breach of this mandate was no doubt responsible for the loss of funds claimed herein.

It is evident from these facts that the Appellant Bank owed a duty of care to the Respondent to carry out its instruction as set out in the mandate to the Bank. By allowing a stranger to its agreement with the Appellant Bank, as contained in the mandate, to operate its account and for purposes other than those set out in the instructions opening the account as set out in Exhibit 8, the Appellant Bank breached the agreement as well failed to discharge that duty that it must show care to ensure that the mandate is strictly complied with. The Appellant Bank was in breach of the duty of reasonable care and skill it owed to the Respondent.

It is however surprising that the Appellant Bank, which should itself be embarrassed by this default, nevertheless continues to deny that it had failed to show sufficient care and skill as would be reasonably expected of it. I am of the considered view that the trial High Court rightly found in favour of the Respondent based on the overwhelming evidence before it. The consequence that should follow from the finding of absence of sufficient care and skill by the principles of awarding damages in tort, is to put the Plaintiff in the position he would have been in if the tort had not been committed.

On the facts of this case, which from the evidence of the DW1 are not in dispute, it is clear that the Appellant Bank was in breach of its duty to exercise reasonable care and skill owed to the Plaintiff. The Appellant Bank, through the evidence of its only witness, has admitted its failure to discharge its duty to the Plaintiff. Such an admission was sufficient evidence of failure to exercise the requisite care and skill. The trial Judge was therefore eminently right to have inexorably so found, (at pages 132-140 of the printed Record) after due and proper consideration and evaluation of the evidence before it and the issues thrown up by the action. These findings are clearly borne out by the issues as joined by their parties in their pleadings, and the evidence, both oral and documentary, adduced in support. For that reason, I cannot, with the greatest respect, fault these findings of facts by the learned trial Judge who brilliantly analysed the case before him and came out with a decision, which I consider, just and in line with the evidence before him.

Before I conclude, learned Counsel for the Appellant Bank made heavy weather of the finding of the learned trial Judge asserting the merger of the two accounts of the Plaintiff by the Defendant Bank. He has contended that it was an issue raised suo motu by the lower Court, who didn’t afford parties an opportunity to address it on same before making its findings thereon. I find this a highly preposterous submission in view of the obvious implication and connotation of paragraphs 15(b) &(c) of the Defendant Bank’s Statement of Defence at pages 85-89 of the Record of the trial Court and paragraph 2 of the Plaintiff’s Reply at pages 74-75 thereof. In addition, in the light of the averments in these pleadings, learned Counsel for the Plaintiff pointedly addressed the lower Court in his ‘Written Address’, particularly at page 22 of the Record, specifically on the issue of the merger of the two accounts as raised by parties on their pleadings. For ease of reference, Counsel submitted thus:

“It is however submitted that the Defendant in the absence of express or implied instructions from the Plaintiff cannot combine the said accounts. This is because the basis of the agreement between a banker and its customer is that the account kept by the customer should be kept separate. See BON V Akintoye (1999) 12 NWLR (Pt. 631) 392…” (Underlining supplied for emphasis)

It is indisputable that ‘combine’ is another word for ‘merge’. The fact that the Defendant’s Counsel overlooked this submission for reasons best known to it and failed to make any reference to the issue in the Defendant’s Written Address or any subsequent Reply when he had ample opportunity to do so, is no reason for the trial Court to similarly shut his eyes to the submission. Instead, the learned trial Judge did his duty, as required by law, in addressing all the issues raised in the matter before it. Therefore, it certainly was not an issue raised suo motu, nor was the Appellant Bank not afforded an opportunity to address on same. Instead, it had every opportunity to make its input thereto and it evidently decided not to. The Appellant Bank cannot now be heard to complain, as it has so stridently done.

Nonetheless, learned Counsel for the Appellant Bank has still gone on to submit that even if there was a merger of the two accounts by the Appellant Bank, there was nothing, express or implied that could preclude the Appellant Bank from merging the two accounts. He argues that, if even it did, such a merger cannot be held to be unlawful. He relies on FBN Ltd V Moba Farm Ltd (2005) 8 NWLR (Pt. 928) 492 @ 516, paras A-D. I am not unaware of the position of the law as stated in the decision cited that, unless precluded by agreement express or implied from the course of business, the banker is entitled to combine different accounts kept by the customer in his own right even though at different branches of the same bank. In other words, unless an account is a trust account, any two accounts opened in the name of same person can be combined together unless there is an agreement to the contrary. Nevertheless, the conditions expressly set out in this case were conspicuously absent in the instant case since the mandates in Exhibits 1 and 8, instructing the opening of the two accounts, gave direct and specific instructions as to how the accounts were to be operated, which directives the Appellant Bank agreed to by accepting to open the said accounts, and yet went ahead to breach same. Thus, while I agree that it is good law, it is not applicable willy nilly to the peculiar facts of this case.
Furthermore, in Agyu V Malami (1992) 9 NWLR (Pt. 264) 254, para G, which followed the decision in British and French Bank V Opaleye (1962) 1 All NLR 26, it was held thus:
“Where by agreement express or implied, a customer has several accounts with a banker, they are to be kept distinct and separate. The banker has no right to combine them or transfer assets or liabilities from one account to another without reasonable notice of the intention so to do or without assent of the customer.”
The Appellant was therefore precluded by this agreement from combining the two accounts since, by the express instructions of the Respondent, they were directed to be operated separately for different and distinct purposes and by different persons, as named in the said mandates issued by the Respondent. Therefore, for all the aforementioned reasons, I resolve issue one in favour of the Respondent.

Issue 2: Whether the failure to join the employees as necessary parties to the suit robbed the trial Court of its jurisdiction to hear and determine the action (Ground 6).

In respect of issue two, learned Counsel for the Appellant submits that the failure of the Respondent to join the necessary parties robbed the trial Court of its jurisdiction to hear and determine the suit. He relies on Ngige V Obi (2006) 14 NWLR (Pt. 999) 1 @ 178, paras C-E to submit that a necessary party is one whose presence is necessary for the just and final determination of a suit. Counsel argues that the said M. A. Abdulkadir, Ahmadu Waziri and Daniel Bodam were in the employment of the Respondent and were the principal actors in the events that gave rise to this suit. As such, he argues, they are necessary parties to this suit.
Counsel submits that the presence of the named individuals were necessary to enable the trial Court conclusively determine the suit and so their absence was fatal to the Plaintiff’s case. Reliance is placed on Christaben Group Ltd V Oni (2008) 11 NWLR (Pt. 1097) 84 @ 117, paras D-E; Jimoh V Oyinloye (2006) 15 NWLR (Pt. 1002) 392 @ 401, paras G-H. He urged the Court to so hold and to resolve this issue in favour of the Appellant. Counsel finally urged the Court to allow this Appeal.

In his response to this issue, learned Counsel for the Respondent submits that the non-joinder of the persons who withdrew the money from the Defendant’s account does not defeat the claim. He submits that it is settled law that once a court is satisfied that a suit is not liable to be defeated because of non-joinder of a third party, it is quite possible for the court to adjudicate upon the matter without the presence of the third party. He relies on UBA Plc V Ogundoku (2009) 6 NWLR (Pt.1138) 450 @ 484, paras C-F; Green V Green (1987) 3 NWLR (Pt. 61) 480 @ 482, para H.

It is Counsel’s further submission that person(s) who dealt in an unauthorised manner with the Plaintiff’s account are not necessary parties to this action for negligence against the Appellant Bank who allowed the unauthorised withdrawal. He submits that necessary parties are those who are not only interested in the subject matter of the proceedings, but also in whose absence the proceedings cannot be fairly dealt with. He also places reliance on Green V Green (1987) 3 NWLR (Pt. 61) 480 (supra). Counsel submits that, in the instant case, the proceedings were fairly conducted because the parties to the contract were before the Court. He maintains that the unauthorized persons who operated the Respondent’s account may be considered desirable parties, but even without being joined in the suit, the matter can be determined, just as it was done by the trial Court. Thus, Counsel urged the Court to dismiss the Appeal as being without merit.

Findings

The Plaintiff claimed thus in its Amended Statement of Claim, contained at pages 47-56 of the Record:

“13. Whereof the Plaintiff claim (sic) as follows:
(i) The sum of N39, 508, 156.00 (Thirty Nine Million, Five Hundred and Eight Thousand, One Hundred and Fifty Six Naira only) being damages suffered by the Plaintiff as a result of the Defendant’s negligence in failing to comply with the mandate on the signatory for the operation of the Plaintiff’s remittance account and allowing an unauthorised person to operate the Plaintiff’s remittance account withdrawing therefrom N39, 508, 156.00 over the period June 2001 to January 2003.
(ii) Interest on the said sum of N39, 508, 156.00 calculated as follows:
(a) Interest at the rate of 30% per annum with effect from 14th June, 2001 on the sum of N24, 708, 660.00 being the amount wrongfully dealt with by the Defendant between 14th June, 2001, and 14th November, 2001 totalling N3, 088, 582.50;
(b) Interest at the rate of 25% per annum with effect from 1st January, 2002 to 1st January, 2033 (sic) on the sum of N39, 508, 156.00 totalling N9, 877, 039.00;
(c) Interest at the rate of 24% per annum with effect from 1st January, 2003 on the sum of N39, 508, 156.00 being the amount wrongfully dealt with by the Defendant between the period 1st January, 2003 and 26th August, 2003, totalling N6, 321, 316.96;
(d) Interest at the rate of 24% per annum on the sum N36, 508, 156.00 from 26th August, 2003 to the date of Judgment or until final payment.
(iii) The costs of this action.
(iv) Further or better reliefs.”

From the above, it is evident that the only relevant and necessary party to this action is the Appellant Bank itself, in whose Bank the Plaintiff’s accounts were domiciled, who was issued with the mandates on the operation of the accounts and who, (it is alleged in the claim), failed to obey the instructions as to the signatories in the mandates, causing the Plaintiff losses to the tune of millions of Naira, which were, as a direct result of its negligence, withdrawn by unauthorised persons. There is no relief sought against the unauthorised persons allowed by the Appellant Bank to withdraw from these accounts. Hence, it is only the actions of the Appellant Bank that were being challenged by the Respondent.
As the banker of the Respondent, the Appellant Bank alone owed the duty of care to ensure that the confidence reposed in it by its customer in keeping its monies in its establishment was not misplaced, and that it would also strictly comply with all instructions given to it as to the operation of its accounts, inclusive of the persons who would be allowed to withdraw there from. If a Bank cannot be held accountable by its customers in this regard, then it portends grave danger for operators of accounts worldwide. That is precisely one of the reasons why the Bank owes a duty of care to be diligent and apply all thoroughness in obeying the mandates of the customer. Thus, it is quite apparent that the only necessary party to be sued for the lapses complained of by the Plaintiff in the circumstances of this case is the Defendant Bank.
A very similar scenario played out in the case of Bello V INEC (supra), where the Plaintiff sued the Defendant via an Amended Originating Summons asking pertinent questions to be determined and sought certain reliefs from the trial Court. The trial Court found that a previous 2nd Defendant, who was subsequently dropped from the suit, was a necessary party without whom the trial could not proceed. On appeal to the Court of Appeal, the decision of the trial Court was upheld. However, on further appeal to the Supreme Court, the decision was unanimously overturned and the apex Court per Mohammed, JSC, held inter alia as follows at pages 144-145 of the Report:
“In the determination of the question of who were the parties in the action heard on the amended originating summons by the trial court, it is also relevant to examine the question asked for determination by the trial court and the reliefs sought by the appellant as plaintiff against INEC as the only defendant… All the three reliefs sought by the appellant were against the 1st respondent… Thus, from the questions for determination and reliefs sought in the action as framed in the originating summons heard and determined by the trial court, the Appellant as the plaintiff had no quarrel or dispute whatsoever with his political party, the 2nd respondent which forwarded his name to the 1st respondent that screened and cleared him to contest the election. As no relief was sought directly against the 2nd respondent which was not a party in the action… the trial court and the court below were clearly in error in regarding the 2nd respondent as a party in the appellant’s case.” (Underlining supplied for emphasis)
Therefore, a court is required to restrict itself to resolving issues in dispute as between parties before it only as it relates to the reliefs claimed by the Plaintiff in his Statement of Claim. Thus, even where a party or a person, who considers that he should have been a party, is aggrieved, his remedy lies in Section 243 of the 1999 Constitution. Consequently, the non-joinder of a party will not necessarily render the proceedings a nullity on the ground of lack of jurisdiction or competence of the court. In agreeing with the lead Judgment, the highly respected Oguntade, JSC, added thus at pages 162 & 167 of the same Report:
“What makes a person a necessary party? The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party…Failure to join a necessary party in an action is a procedural irregularity which does not affect the competence or jurisdiction of the court to entertain the matter before it. But where the irregularity leads to injustice or unfairness to the opposing party, it may lead to setting aside the Judgment on appeal.” (Underlining supplied for emphasis)
Flowing on the heels of the above decided authorities, it is therefore my finding that, there being no complaint or relief against any other person in the Statement of Claim of the Respondent, the unauthorised persons whom the Appellant Bank allowed to make withdrawals from its accounts, in violation and contravention of the mandates of the Respondent, cannot be said to be necessary parties to be joined in the proceedings either upon its application or suo motu by the trial Court. Failure to join a necessary party to a proceeding does not render any judgment entered therein a nullity, nor render the court in question incompetent to adjudicate in the matter. See again Bello V INEC (supra) @ 171 per Onnoghen, JSC. The conclusion therefore of all this is that non-joinder of a party cannot void a claim, though a plaintiff is enjoined to sue all necessary parties to an action. See Cameroon V Otutuizu (2011) 2 SCNJ 96. Accordingly I resolve issue two also in favour of the Respondent.

In the final analysis, having answered both issues in favour of the Respondent, I find the Appeal lacking in merit. It is hereby dismissed. I affirm the decision of the Adamawa State High Court delivered on 26th September, 2012 in Suit No. ADSY/44/2007, in respect of the principal sum claimed plus interest at the rates awarded. Since also costs follow events, the Respondent is entitled to costs assessed at N50, 000.00 payable to it by the Appellant Bank, and same is awarded.

JIMI OLUKAYODE BADA, J.C.A.: I have read before now the lead judgment of my Lord, JUMMAI HANNATU SANKEY, JCA, just delivered and I agree with my Lord’s reasoning and conclusion.

The appeal by the consequential orders made in the said lead Judgment including order as to costs.

ADAMU JAURO, J.C.A.: I have been opportune to read in draft the judgment of my learned brother, JUMMAI HANNATU SANKEY, JCA, just delivered.
I
am in complete agreement with the reasoning and conclusion contained in the said judgment, to the effect that there is no merit in the appeal and should be dismissed. The judgment has exhaustively considered the two issues for determination, I adopt same as mine and hereby dismiss the appeal.

Appearances

Mr. G.C. AdikwuFor Appellant

AND

Mr. Hassan G. Maidawa, appears with Miss J.A. Bwangali and Miss H.A. NgbaleFor Respondent