MR. FASISI BELLO-OSAGIE & ORS. V. FIRST BANK OF NIGERIA PLC (2010)

MR. FASISI BELLO-OSAGIE & ORS. V. FIRST BANK OF NIGERIA PLC

(2010)LCN/3804(CA)

In The Court of Appeal of Nigeria

On Monday, the 17th day of May, 2010

CA/B/98/2003

RATIO

APPEAL: WHERE SHOULD ISSUES FOR DETERMINATION ARISE FROM
Issues for determination in an appeal must arise from the Grounds of Appeal.
See NYA V. EDEM (2005) 4 NWLR (Pt.915) 345 at 362. ADELEKE V. ECU-LINE NV (2005) 8 MJSC 142 at P. 158, IGUNBOR V. AFOLABI (2001) FWLR (Pt.59) 1284 at Pp. 1295 – 1296. PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
PARTIES TO AN ACTION: EFFECT OF NON-JOINDER OF A NECESSARY PARTY
Even though non joinder of a necessary party should not affect the justice of a case once the case can be effectively and effectually determined without the party, PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.

JUSTICES

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

Between

1. MR. FASISI BELLO-OSAGIE
2. PROF. TIYAMIYU BELLO-OSAGIE
3. RASAKI BELLO-OSAGIE
4. SALAMI BELLO-OSAGIE Appellant(s)

AND

FIRST BANK OF NIGERIA PLC Respondent(s)

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellants who were the Plaintiffs in the court below instituted the action which led to this appeal against the Respondent who was the Defendant in the High Court of Edo State.
In their further amended Statement of Claim, the Appellants claimed the following reliefs against the Respondent Bank:
“(a) A declaration that all monies removed from the account of the Estate of Late Chief Bello-Osagie via cheques signed by a non-executor were illegally removed.
(b) An order that the said monies thus illegally removed be refunded and paid over to the account of the estate forthwith.
(c) One Million Naira General Damages for negligence. ”
Pleadings were filed and exchanged by the parties. The case presented at the trial briefly put, was that the four Original Executors of the Will of Late Chief Bello-Osagie, namely Ben Edo-Osagie, Alhaji Sule Oyiboke, Mr. E.O. Igunbor and late Bishop John Edokpolor, opened an Estate Account in respect of the Will of Late Chief Bello-Osagie in 1969 at the King’s Square, Benin City Branch of the Respondent Bank. The Original Executors later appointed one of them, Ben Edo-Osagie and Pastor Nafiu Bello-Osagie, a non-executor and a beneficiary of the estate as co-signatory to the Estate Account by the Executors of the Will.
The Respondent Bank honoured cheques signed jointly by Ben Bello-Osagie and Pastor Nafiu Bello-Osagie in accordance with the said original Executors’ Written Instruction, tendered as Exhibit D.
The Original Executors were later substituted by the Appellants in a Judgment tendered as Exhibit H. The Respondent Bank’s defence was that it had no reason or justification not to comply with the Mandate of the Original Executors appointing Ben Edo-Osagie and Nafiu Bello-Osagie as co-signatories, when they were infact the holders of the Estate Account having opened the said account with the Respondent Bank.
The case proceeded to trial on the basis of a Further Amended Statement of Claim filed by the Appellants on the 21/9/98 and a second Further Amended Statement of Defence filed by the Respondent on the 29/3/2001.
At the conclusion of trial, the learned trial Judge Edokpayi, J, (as he then was) dismissed the claims of the Appellants holding as he did at page 82 lines 6 – 20 of the Record of Appeal as follows:
“No commission of any crime by the Defendant Bank has been established against the Defendant Bank which acted in good faith in honouring the cheques co-signed by Nafiu Bello-Osagie in compliance with Exhibit D. Negligence on which the Plaintiffs are. claiming in Paragraphs 12(c) of their Further Amended Statement of Claim has not been established. The Plaintiffs have not sued the Executors who by Exhibit D instructed the Defendant Bank to honour cheques signed by Nafiu Bello-Osagie.
On the whole, I prefer the case of the Defence to that of the Plaintiffs who have failed to establish their case and claims on the preponderance of evidence. The case and claims of the Plaintiffs which have not been proved are herein dismissed. ”
Aggrieved by the Judgment of the trial court, the Appellants have appealed to this court on a total of four grounds (one original and three additional grounds) which without their particulars are herein set out.
They read:
“(1) The Judgment is against the weight of evidence.
(2) Learned trial Judge erred in law by his failure to properly evaluate the evidence before him, and thereby came to wrong conclusion which occasioned gross injustice to the Appellants.
(3) Learned trial Judge erred in law to hold that since the erstwhile Executors of the Will and the non-Executor signatory of the cheques were not before the court, the Appellants could not successfully make a claim.
(4) Learned trial Judge misdirected himself in failing to appreciate that the singular act of allowing non-executors to the Will to sign cheques on the Estate Account was in itself unlawful and wrongful.”
From the forgoing Grounds of Appeal, the Appellants formulated three issues for determination in his Brief of Argument as follows:
“(a) Whether the learned trial Judge in this case properly and/or adequately evaluated the evidence before him. (Grounds 1 and 2).
(b) Whether the Plaintiffs/Appellants were not Prima Facie negligent by allowing funds to be removed from an Estate Account through a non-Executor’s signature on cheques drawn on the Estate Account. (Ground 3).
(c) Whether the age-long dictum of DELEGATUS NON POTEST DELEGARE applies in the instant case. (Ground 4).
The Respondent on its part identified two issues for determination:
“(1) Whether the .learned trial Judge did not properly evaluate the evidence proffered by the parties to this case and whether he did not come to a right conclusion.
(2) Whether the Appellants proved their allegation that it was the Respondent Bank which allowed or permitted a non-executor to sign cheques drawn on the estate account and the reliefs they claimed based on the said allegation.”
The Respondent raised a Preliminary Objection on the basis that issue (c) also referred to as Issue NO.3 formulated in the Appellants’ Brief of Argument is incompetent in that it did not arise from any of the Grounds of Appeal filed by the Appellants.
Counsel argued that, issues for determination in a brief must be distilled from the Grounds of Appeal filed by the Appellants and any arguments based on an issue not distilled from a Ground of Appeal is as incompetent as the issue itself.
I had earlier reproduced the four Grounds of Appeal filed by the Appellants, in the same vein. I have also made a verbatim reproduction of the three issues as formulated by the Appellants.
In his argument on issue (c) or (3) which he argued together with issue (b) or (2) the Appellants relied heavily on the maxim “Delegatus non Potest delegare” meaning that A delegate has no power to sub-delegate the power he has been delegated to perform.
A cursory look at the Grounds of Appeal shows that this doctrine does not form part of the Grounds of Appeal or their particulars.
Issues for determination in an appeal must arise from the Grounds of Appeal.
See NYA V. EDEM (2005) 4 NWLR (Pt.915) 345 at 362.
ADELEKE V. ECU-LINE NV (2005) 8 MJSC 142 at P. 158, IGUNBOR V. AFOLABI (2001) FWLR (Pt.59) 1284 at Pp. 1295 – 1296. I uphold the Preliminary Objection of the Respondent, and hold that issue (c) or (3) is incompetent in that it is not borne out of the Grounds of Appeal. It is hereby struck out.
Now to the appeal proper. It is my view that the issues as formulated by the Appellants and the Respondent can conveniently be compressed into one broad issue thus:
“Whether the learned trial Judge was right in holding that the Appellants (Plaintiffs at the lower court) did not prove their case and consequently dismissed same.”
All the arguments of learned counsel for the Appellants and Respondent are covered by this single issue. In his Brief of Argument, learned counsel for the Appellants, Chief Osaheni Uzamere, lifted some of the findings of the learned trial Judge in the Judgment and contended that the Judge did not properly evaluate the evidence before him and therefore the decision is against the weight of evidence, and led to a miscarriage of Justice.
He referred to the case of OVERSEAS CONSTRUCTION CO. NIG. LTD. V. GREEK ENTERPRISES (NIG) AND ABANDONED PROPERTY AUTHORITY (1985) 3 NWLR (PT. 13) at P. 44.
He submitted that the Court of “Appeal has the right to evaluate evidence where the lower court fails or neglects to adequately evaluate the evidence before it.
He cited the cases of AMIDA & ORS V. OSHOBOJA (1984) 7 SC P. 68 at 89.
UNION BANK OF NIGERIA PLC V. BORINI PROMO CO. LTD (1988) 4 NWLR (PT. 547) P. 640 at 642.
MUSA V. YERIMA (1997) 7 NWLR (PT. 511) P. 27 at 31.
He further submitted that, an Estate Account is “Sui generis” and that the learned trial Judge completely ignored this fact and proceeded to give Judgment without putting an Estate Account on its own class.
In his reply on this issue, learned counsel for the Respondent, C.D. Bello Esq, referred to the evidence of PW1 where he said:
“A person who is not an Executor of the Will cannot administer the account of the Will without authority from the Executors of the Will.”
He also referred to the evidence of DW1, where he stated that at the time material to this case (1969 – 1988) the Respondent honoured all cheques jointly signed by Ben Edo-Osagie and Nafiu Bello-Osagie as directed by the original Executors of the Will in Exhibit D, and submitted that the learned trial Judge was right, and had no option but to act on the uncontroverted and uncontradicted evidence before the court.
He cited NIGERIAN MARITIME SERVICES LTD. V. AFOLABI (1978) 2 S.C. 79 at Pp 81- 82.
OMOREGBE V. LAWANI (1980) 3 – 4 S.C. 108 at 117.
On the submission of the Appellant that an Estate Account is Sui Generis, and therefore failure by the learned trial Judge to put that into consideration occasioned a miscarriage of justice, counsel referred to the case of BRONIK MOTORS LTD (1983) 6 S.C. P. 158 as well as JAMMAL STEEL STRUCTURES LTD V. ACB LTD Supra.
and argued that the issue in the two cases were whether it was the Lagos State High Court or the’ Federal High Court that had jurisdiction in an ordinary day to day banking transaction between Plaintiff Bank and the Defendant in the respective cases, and the Supreme Court held that jurisdiction in both cases vested in the Lagos State High Court. He submitted that both cases have no relevance in the case of the Appellants, and therefore should be ignored.
It is pertinent to observe that apart from mere mention of cheques in Paragraph 7 of their Further Amended Statement of Claim, the Appellants (Plaintiffs at the lower court) did not lead evidence to show the cheque or cheques said to have been co-signed by Nafiu Bello-Osagie and Ben Edo-Osagie. There was also no single mention of the amount said to have been withdrawn in the said Estate Account.
It is my humble but firm view that for the Appellate Court to interfere there must be a cogent, concrete and convincing reason to do so, as an Appellate Court cannot interfere in vain and where the need does not arise. In this type of case, the cheque or cheques ought to be produced and proved and the exact amount involved specifically pleaded and proved to justify the intervention of this court.
DW1, Osarinmwian Asowata, in his evidence in court stated:
“The holder of an account holds absolute control over the appointment as to who signs withdrawals from his account in the bank and the bank has no stake at all in that matter or choice. The bank only complies strictly with the instructions in the Mandate of the account holder or executors of his Will, if he is dead. In respect of Exhibit 0, the Defendant Bank honoured all cheques jointly signed by Ben Edo-Osagie and Nafiu Bello-Osagie as directed by the Executors of the Will in Exhibit D, the Mandate.” (See page 54 lines 14- 23 of the record)
It is also on record that Exhibit O was changed by the order of the court in 1988 and since then the Respondent Bank stopped honouring cheques jointly signed by Ben Edo-Osagie and Nafiu Bello-Osagie.
It is in evidence that Exhibit D was a Mandate signed by the four Original Executors of the Will instructing the Respondent Bank that Ben Edo-Osagie one of the Beneficiaries of the Will should act as co-signatories to the Estate Account.
The Appellants did not plead or prove fraud by the Respondent Bank or the co-signatories to the Estate Account i.e. Nafiu Bello-Osagie or Ben Edo-Osagie.
Both parties are in agreement that the Mandate or Instruction appointing Nafiu Bello-Osagie a co-signatory to the Estate Account was communicated to the Respondent Bank through Exhibit D.
Even though non joinder of a necessary party should not affect the justice of a case once the case can be effectively and effectually determined without the party, it is pertinent to observe that neither Nafiu Bello-Osagie nor the Original Executors were joined in this suit.
The appointment of Nafiu Bello-Osagie as a co-signatory has not been established to be inconsistent with laid down principles of accountability. No amount or loss or damage has been shown to have resulted to the Appellants as a result of withdrawals form the Estate Account. It is also not established that the money withdrawn from the Estate Account was put into proper use or in no way used for the benefit of the beneficiaries whom it was meant for.
The Appellants have failed to show that the Respondent on its own allowed a non-Executor to co-sign, and draw from the Estate Account I agree with the Respondent that the holder of an account (Estate Account inclusive) has absolute control over the appointment as to who signs withdrawals from his account in the bank and that the Bank has no choice or authority in such a situation. It is my humble view that the Respondent Bank was well within the Law, and acted in good faith when it honoured the Mandate or Instruction Exhibit D, which it received from the prig mal Executors. The Respondent was therefore in no way negligent.
In the final result and having regard to all I have said above, answer the sole issue in this appeal in the affirmative. All the Grounds of Appeal fail.
The appeal is dismissed in its entirety. The Judgment of the lower court is affirmed. The Appellants will pay the Respondent cost of N10,000.00 (Ten Thousand Naira) in this appeal.