POLARIS BANK v. VITAL VETS (NIG) LTD (2020)

POLARIS BANK v. VITAL VETS (NIG) LTD

(2020)LCN/15281(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Wednesday, June 10, 2020

CA/J/209/2009

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

POLARIS BANK LTD APPELANT(S)

And

VITAL VETS NIG LTD RESPONDENT(S)

RATIO

WHETHER OR NOT EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE TO IT IS THE BUSINESS OF THE TRIAL COURT

Evaluation of evidence and ascription of probative value to it are primarily and pre – eminently the business of the trial Court which saw and heard the witnesses. An appellate Court will not lightly interfere with the same unless for compelling reasons. But where the evidence has nothing to do with the demeanour of witnesses or relates to interpretation to be placed on documents tendered before the Court or inferences to be drawn from evidence, an appellate Court will be in as good a position as the trial Court to assess the evidence on record. See Balogun V Agboola (1974) 1 All NLR (Pt. 2) 66, Thompson V Arowolo (2003) 7 NWLR (Pt. 818) 163 and BFI Group Corporation V BPE (2012) 18 NWLR (Pt. 1332) 209. PER EKANEM, J.C.A.

ATTRIBUTES OF A GOOD JUDGEMENT

Judgment writing is an art and each Judge has his own style of writing judgment. Once the judgment contains the major attributes of a good judgment, an appellate Court will not interfere. The major attributes of a good judgment are the statement of the claim or relief, the relevant facts and counter facts leading to the claim or relief, arguments of counsel, if counsel are in the matter, reaction of the Judge to the arguments and issues and the final order. See Usiobaifo V Usiobaifo (2005) 125 LRCN 584, 611 – 612. PER EKANEM, J.C.A.

DUTY OF THE COURT IIN RESPECT OF FINDINGS OF FACTS

In respect of findings of facts, there are certain points that a trial Court must observe. In Odofin V Mogaji (1978) 1 LRN 212, 213, Fatayi-Williams, JSC, set out the template as follows:
“Therefore, in deciding whether a certain set of facts given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial Judge after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other; and then apply the appropriate law to it …”
His lordship went on to emphasise the point at pages 213 – 214 thus:
“In short, before a Judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on the imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities”. PER EKANEM, J.C.A.

WHETHER OR NOT AN OBJECTION TO A GROUND OF APPEAL CAN BE TUCKED AWAY IN THE RESPONDENT’S ARGUMENT OF THE ISSUE

An objection to a ground of appeal or an issue for the determination of an appeal cannot be unceremoniously tucked away in respondent’s argument of the issue under attack without giving notice that it will be raised by him. If a respondent has such an objection, he is required to raise it by way of a preliminary objection (if the objection is against all the grounds and issues) or to raise it in a motion on notice (if it attacks one of several grounds/issues). See Orlu V Gogo–Abite (2010) 8 NWLR (Pt. 1196) 307, 321 and MTN Communication Ltd V Abia State Government (2016) 1 NWLR (Pt. 1494) 475, 495 – 496. PER EKANEM, J.C.A.

DEFINITION OF A GROUND OF APPEAL

A ground of appeal is the totality or sum of the reason/s why the decision complained of is considered wrong by the appellant. Its purpose is to isolate and accentuate the basis of the reasoning of the decision challenged. See Ngere V Okuruket “XIV” (2017) 5 NWLR (Pt. 1559) 440, 465 and Sylva V INEC (2018) 18 NWLR (Pt. 1651) 310, 332 – 333. On the other hand, the particulars of a ground of appeal are to highlight the grouse of the appellant in the ground of appeal. They are the specific reasoning, finding or observation in the judgment or ruling relating to or projecting the error or misdirection complained of. They therefore should not be independent complaint from the ground of appeal itself but ancillary to it or they must flow from it. See Globe Fishing Industry Limited V Coker (1990) 7 NWLR (Pt. 162) 265, 300, Oke V Mimiko (No.2) (2014) 1 NWLR (Pt. 1388) 332, 380, 381 and Waziri V Geidam (2016) 11 NWLR (Pt. 1523) 230, 256. PER EKANEM, J.C.A.

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgement of the High Court of Benue State, Makurdi Division (the trial Court) delivered on 5/2/2009 in suit No. MHC/50/2005. In the judgment, the trial Court awarded the sum of N2,000,000.00 in favour of the respondent against the appellant for an unauthorized withdrawal from its account with the appellant.

The facts of the case leading to this appeal as pleaded by the respondent are, in precise, that it established an account with the Makurdi branch of the appellant. The sole signatory to the account is/was Mr. Christopher Owhe, its Managing Director, who paid the sum of N3, 025,500.00 into the account. On 22/8/2002, the respondent issued a cheque for the sum of N550,000.00 to be drawn on the said account but it was returned unpaid.

Upon requesting and receiving its statement of account, it discovered three instances of unauthorised transfers from the account totaling N3,005,000:00. The appellant could not offer any useful explanation for the transfers. The respondent did not request for the transfers nor did its Managing Director collect any such money. The respondent did not sign any debit note collecting N2,000,000.00 of the total sum. Consequently the respondent filed a writ of summons and an amended statement of claim at the trial Court against the appellant claiming:
“a) The sum of N3,005,000:00 being the amount wrongfully and illegally transferred from the plaintiff’s account with the defendant’s Makurdi branch without the plaintiff’s consent, knowledge and authorisation.
b) The sum of N3,000,000.00 being general damages for conversion and fraudulent interference with the plaintiff’s account aforesaid”.

The appellant filed an amended statement of defence denying the claim of the respondent. It averred that on 6/4/2001, the Managing Director of the respondent called the Makurdi Branch Manager of the appellant on phone from Jos requesting for the withdrawal of the sum of N2,000,000:00 from its account. On being informed that he could not withdraw funds from the account as respondent was yet to be issued a cheque book, he suggested that the money be transferred to an account belonging to Royal Kindergarten Nursery and Primary School which would issue a cheque for the money, transferring the sum to him in Jos. The Branch Manager of the appellant had no hesitation in doing so in view of the relationship between the Managing Director of the respondent and the Proprietress of the School, viz, lovers and also because even before the respondent opened its account, the Branch Manager was privy to the movement of huge sums of money from the account of the school to the Managing Director of the respondent. He collected the money on presentation of the cheque. The other sums of money were also transferred on his instructions. The appellant counter-claimed against the respondent and its Managing Director for the sum of N50,000,000:00 being solicitor’s fees for defending the instant and previous matters connected to the claim.

At the hearing, a total of 22 exhibits were tendered from the bar on agreement of counsel and additional exhibit was tendered in the course of hearing to make it 23 exhibits. The respondent testified through one witness while the appellant testified through four witnesses. After taking addresses from counsel, the trial Court awarded the sum of N2,000,000:00 in favour of the respondent but dismissed its claim in respect of the total sum of N1,005,000:00 holding that the transfer was authourised. It in turn dismissed the counter-claim.

Aggrieved by the decision, the appellant appealed to this Court by means of a notice of appeal which went through series of amendments culminating in the filing of a further further further amended notice of appeal filed on 16/1/2019 but deemed duly filed and served on 24/1/2019. It incorporates 6 grounds of appeal.

Pursuant to the rules of this Court, the appellant filed a further further amended brief of argument on 16/1/2019 which was deemed duly filed and served on 24/1/2019. A reply brief was also filed on 17/3/2020 and same was deemed duly filed and served on 18/3/2020. Respondent filed its amended brief of argument on 20/5/2019 and the same was deemed duly filed and served on 21/5/2019.

At the hearing of the appeal on 18/3/2020, Mrs. F.M.E. Nezan for the appellant adopted and relied on the briefs filed by her in urging the Court to allow the appeal. Charles Eyo, Esq. for the respondent adopted respondent’s brief in urging the Court to dismiss the appeal.

In the appellant’s further further amended brief of argument, the following issues are formulated for the determination of the appeal:
“2.01 Whether the High Court embarked on a private examination of Exhibit B5 & B6 beyond the aspects thereof that were highlighted by the parties in the course of evidence and final arguments, and if so whether its use of its observation there from without inviting submissions from parties violated Appellant’s fundamental right to fair hearing?
2.02 Whether the lower Court properly evaluated the evidence adduced by both parties and drew the correct inference from facts which it found to have been proved before it?
2.03 Whether the rejection by the lower Court of the regiscope film and printed picture tendered by appellant in proof of the identity of respondent as the person who collected the sum of N2 Million from its Jos Branch was proper and if not, whether it occasioned a miscarriage of justice?
2.04 Whether the dismissal by the lower Court of appellant’s counter – claim was proper having regard to the fact that respondent failed to deal with issues raised by appellant in its address and the lower Court in dismissing the counterclaim suo motu raised and determined issues without reference to the parties?”

Respondent’s counsel adopted all the issues distilled by appellant’s counsel except issue 4. Respondent’s formulation of isssue 4 is as follows:
“a. whether PW I (Chris Owhe) is a party to this action and if so, was he served. Our answer is double ‘NO’.
b. whether the trial Court has the jurisdiction to hear and determine the counter-claim when the pleadings and evidence show that the cause of action arose outside its territorial jurisdiction and that the defendant (the Plaintiff/Respondent) herein resides outside its jurisdiction. Our answer is again ‘NO’.
In the alternative,
C. whether the defendant (the appellant herein) is entitled to judgment on merit on her counter-claim. Our answer is still ‘NO’.

With all due respect to respondent’s counsel, his issue 4 is a classical example of how an isue should not be formulated in an appeal. His issue 4 is hydra-headed, made up of three distinct issues. An issue for determination should not comprise of other issues for the Court to determine. See Unity Bank Plc. V. Olatunji (2013) 15 NWLR (Pt 1378) 503, 539 and Husseini V Mohammed (2015) 3 NWLR (Pt 1445) 100, 126.

Furthermore, sub-issues (a) and (b) do not arise from ground 6 of the grounds of appeal or any other ground of appeal. Respondent’s issue not derived from a ground of appeal is not competent, more so where he did not file a cross-appeal. See Oke V Maja (2014) 3 NWLR (Pt. 1394) 379,388. Furthermore, issue 4(a) does not arise from the judgment of the trial Court. Respondent can only raise it by way of a respondent’s notice to affirm the judgment. No such notice has been filed. Issue 4(b) was decided in respondent’s favour by the trial Court and so he is not competent to raise it by any means.
I shall therefore be guided by the issues formulated by appellant’s counsel in the determination of the appeal.

Issue 1
Appellant’s counsel stated that the crux of the complaint on this issues is that the trial Court examined Exhibits B5 and B6 privately in chambers beyond the scope of what was highlighted by the parties during the trial in open Court; that in so doing, it made certain observations that led to some conclusions without referring to the parties especially appellant against whom the observations were used. Counsel referred to the judgment of the trial Court and submitted that the trial Court thus engaged in an investigation of the case. She placed reliance on Bornu Holding Company Ltd V Bogoco (1971) All NLR 325 and Owe V Oshinbajo (1965) All NLR 74. She stressed that the trial Court used its private examination of Exhibit 6 to find that it was not the document through which the sum of N2,000,000:00 was transferred and collected by PW1. This, counsel contended, violated appellant’s fundamental right to fair hearing and vitiated the findings that Exhibit 6 was not the document used in transfering N2,000,000:00 to PW 1.

Respondent’s counsel stated that the examination of Exhibits B5 and B6 by the trial Court was not an investigation. This, he said, is because it would require the extraordinary for our Courts to deliver justice in a case without judicial examination and/or critical investigation of exhibits/evidence admitted in Court. Counsel posited that in order to determine who to believe, the trial Court had to review and examine critically the entire evidence adduced by the parties. He submitted that once documentary evidence was admitted by consent and taken as read, the parties thereby adopted the totality of their content including the contradictions therein.

Counsel argued that a Court can only be said to have judicially investigated a case only and only when it imports and examines evidence not adduced before it. He added that since Exhibits B5 and B6, apart from others, were before the trial Court, the Court was right to judicially examine the same to determine the truth. He posited that a trial Court cannot after it retires to its chambers to determine the truth of a case recall parties to address it every time on a point of contradiction in evidence admitted by consent. He distinguished the case of Bornu Holding Ltd V Bogoco supra. cited by appellant’s counsel from the instant matter on the basis that in the latter the exhibits were admitted by consent and taken as read unlike the former case.

The reply by appellant’s counsel was nothing but an attempt to re-argue the issue. I therefore discountenance it.

Resolution.
In the course of preparing its judgment, a Court of law is required to critically examine evidence tendered and admitted before it including documentary evidence in its bid to arrive at the justice of the matter. This is not normally done in the open Court but in the judge’s chambers or study and it is a sacred duty of the Court. In Arabambi V Advance Beverages Industries Limited (2005) 19 NWLR (Pt. 959) 11, 29 Mukhtar, JSC (as he then was) stated thus:
“Learned Senior Advocate submitted that the learned trial judge was not entitled to conduct private investigation on documents tendered, and on which no evidence was led and thereby arrived at conclusions adverse to the other party. He further submitted that a trial Court has no power nor the duty to do cloistered justice by privately going into chambers to examine documents and start to find fault therein. This is a new one, for I have never heard a Judge conduct private investigation on evidence before him, (not that he would use privately acquired knowledge of facts he knew about a case before him), but that he will go out of his way to do his own investigations.

That a Learned Judge privately went into chambers to examine documents is not improper. That is the normal practice and that is how a Judge discharges his judicial function. A Judge takes all evidence given in Court i.e. oral and documentary et all, and at the end of the day after hearing has been conducted, he retires to his chambers or even his residence, as it is always the case, to consider and appraise all the evidence. He cannot and is not expected to do this in open Court and in the process of hearing the case or trial”.
At page 31 of the report, his lordship stated:
“In fact even when necessary, a Judge ought to comb any crucial evidence before him with the finest tooth comb to ensure that the credibility and reliability of the evidence is ascertained and applied towards the just determination of the case. If dong that is what the learned senior counsel say is tantamount to private investigation, then it is most unfortunate”.
In closely examining documentary evidence before it, however a learned judge is not to engage in private investigation as a trial is not an investigation. It is immaterial that such evidence was admitted by consent and was taken as read. This is so on account of the adversarial system of adjudication that is the feature of our judicial system in which the judge must operate as an impartial arbiter, a referee of sorts. In Duriminiya V Commissioner of Police (1961) NRNLR 70, the Northern Region High Court stated:
“The Magistrate examined the books, but apparently not in Court for the record does not show that he observed or was shown any entries in Court, except the few we have mentioned – and in examining them out of Court, as appears from his judgment, he observed numerous points which ought to have been brought out in Court at the hearing but were not. In doing this, the magistrate was not trying the case, he was investigating it.
A trial is not an investigation, and an investigation is not the function of the Court. A trial is the public demonstration and testing before a Court of the case of contending parties. The demonstration is by assertion and evidence, and the testing is by cross-examination and argument. The function of a Court is to decide between the parties on the basis of what has been so demonstrated and tested.

What was demonstrated in Court at this trial failed to support the prosecution’s case, and the magistrate should have dismissed the case. It was not part of his duty to do cloistered justice by making an inquiry into the case outside Court not even by the examination of documents which were evidence, when the documents had not been examined in Court and the magistrate’s examination disclosed things that had not been brought out and exposed to test in Court, or were not things that at least must have been noticed in Court”.
The above opinion was quoted with approval by the Supreme Court in Bornu Holding Company Limited V Bogoco (1971) All NLR 325, 330 – 331. See also Owe V Oshinbajo (1965) All NLR 74 and Ivienagbor V Bazuaye (1999) 9 NWLR (Pt. 620) 552, 561 on this same point. What can be easily said is that a judge in carrying out his sacred duty of critically examining documentary evidence tendered in a case in the course of evaluating evidence must not engage in investigation of the case. The thorny question as to the difference between an investigation and evaluation of evidence was answered by Ayoola, JSC, in West African Breweries Ltd V Savannah Ventures Limited (2002) 10 NWLR (Pt. 775) 401,426-427 as follows:
“Granted that, sometimes, the line between what is investigation and what is evaluation of documentary evidence may be blurred and difficult to define, the distinction is that whereas, investigation leads to a discovery of fresh facts the truth of which could have been challenged by fresh contrary evidence, evaluation of evidence leads merely to findings based on the quality of evidence already existing”.

In this instance, Exhibit B6, a debit voucher for N2,000,000:00, was tendered from the bar on the agreement of both counsel. It was tendered to show the payment to and collection of the sum of money by the respondent which money was said to have been transferred to the account of the Royal kindergarten Nursery and Primary School vide Exhibit 5 on respondent’s instruction. The PW1 was confronted with his alleged signature at the back of Exhibit 6 and the one on Exhibit 2 (the signature card of respondent’s account). He said there was a difference between the two. The DW1 and the DW3 (the Branch Manager and the transfer officer of appellant) were not cross-examined as to the dates on Exhibits B5 and B6 and the account numbers in Exhibit B2 and B3. Nevertheless, the trial Court found at page 232 of the record of appeal thus:
“Further, the column for account number in the debit voucher or advice in Exhibit B6 has the entry of 4632400, whereas the account number of the plaintiff is stated in Exhibit B2 to be 36000693-4, while that of the DW2 is stated in Exhibit B3 to be 081/000/3600099X and that in Exhibit B5 as 88005081E and 880050704 for the originating branch and the responding branch respectively, showing in my finding that the alleged transaction was not in respect of plaintiff’s account, else it should have been its account number in Exhibit B2 that would have been debited in Exhibit B6.
Also, the left hand top of Exhibit B5 has the official stamp of defendant bank with information that it was received by the mail department of defendant bank on 18.4.2001, while the debit voucher in respect of it in Exhibit B6 stated the transaction was done on 11.4.01, importing the receipt of the N2 Million by PW1 was before the Jos branch of the defendant bank got Exhibit B5 authorising the money transfer-sort of putting the cart before the horse – which I find strange, moreso no familiarity or mutual trust was shown to exist between the Jos branch manager of defendant bank or any other official of defendant bank at the Jos branch office to warrant the effecting of the money transfer before the mandate authorising it was received”.

The various facts or points brought out by the learned trial Judge were not brought out in open Court during the hearing either by cross-examination or the learned trial Judge. The learned trial Judge observed those points in the course of examining the documents while preparing his judgment. Those were facts or points that ought to have been brought out in open Court to give the appellant and her witnesses the opportunity to explain, if they could. In that circumstance the trial Court should have invited explanation from the parties before acting on them. See Owe V Oshinbajo supra. Page 78.
The trial Court therefore ought not to have impugned Exhibit 6 on the basis of the points he observed privately without calling for the explanation of the parties in open Court.

In Arabambi V Advanced Beverages Industries Limited supra 29, Mukhtar, JSC, as he then was, in giving a nod to the case of Duriminiya V Commissioner of Police supra and other cases that followed it, and distinguishing them from Arabambi’s case supra, found that in those cases, the efficacy of the exhibits and reliance on them by the trial Judge were at stake. The efficacy of Exhibit 6 was at stake in the instant matter and so the learned trial Judge ought not to have utilized his private observations on it without inviting explanation.
I therefore enter an affirmative answer to issue 1 and resolve it in favour of the appellant.

Issue 2
Appellant’s counsel stated that the trial Court’s rejection of appellant’s claim that Exhibit 6 was the document signed by respondent on the receipt of N2m was not proper. This, she argued, was because in rejecting appellant’s claim the Court did not evaluate evidence led by both sides by placing same on the imaginary scale of justice as required in Odofin V Mogaji (1978) LRN 213 – 214. She contended that the trial Court appeared to have accepted the evidence of the respondent without first placing it side by side with that of the appellant on the point. She quoted the holding of the trial Court to the effect that the Jos Branch Manager of the appellant who made the transfer of N2,000,000:00 did not testify and that by Exhibit B2, only the signature of PW1 would stand as authority for withdrawal of money from respondent’s account. She submitted that the finding that respondent’s evidence on the point was uncontested was perverse as it overlooked the evidence led by the appellant. She argued that since the trial Court had earlier found that the sum of N25,000:00 was contrary to respondent’s assertion, withdrawn from respondent’s account at the instance of PW1 without his drawing any cheque using DW2’s account, the finding complained of could not stand.

Counsel argued that the trial Court did not consider the evidence of appellant before making the finding complained of and was therefore hard pressed to justify the position it had taken. She further argued that contrary to the finding of the trial Court, the principal person the subject of respondent’s complaint was the DW1, the respondent’s Makurdi Branch Manager. Counsel contended that there was enough documentary evidence backing the case of the appellant that the PW1 authorised the transfer of the funds to him in Jos through DW2’s account. She referred to Exhibits A2, B3 and B6 etc. She then pointed out what she termed as picking of “unwarranted holes” in appellant’s evidence. An example, according to her, is the finding that the Jos Branch Manager did not testify which overlooked the position that being a corporate body, any of the servants of the appellant could testify to establish the transaction. She placed reliance on Kate Enterprises Ltd V Daewoo (Nig) Ltd (1985) 2 NWLR (Pt. 5) 116.(not Part 116 as cited by counsel).

Counsel contended that the trial Court failed to draw proper inferences from findings it had made in the course of rejecting the case of the respondent on its claim for N25,000:00 and N980,000:00. She further contended that the Court having found that PW1 had attempted to mislead it in those claims, it was a proper case to make a finding on the credibility of PW1 as a witness. She drew the Court’s attention to the admission of PW1 in cross – examination that he received Exhibit A2, the statement of account, as far back as 2001 and yet he failed to complain about the withdrawals until 4/10/2012 when his relationship with DW2 turned sour. She argued that the Court ought to have inferred that the withdrawals including N2,000,000:00 were authorized.

Counsel invited the Court to re – evaluate evidence led to avert injustice especially as the evidence was principally documentary.

Respondent’s counsel submitted that the contention of appellant’s counsel was an unfair assessment of the industry the trial Court put in, in search for the truth. He further submitted that the trial Court thoroughly reviewed the facts presented by both sides from pages 217 to 224 of the record and subsequently evaluated evidence from pages 224 to 231 including Exhibit 6. Counsel referred to Thompson V Arowolo (2003) 7 NWLR (Pt. 818) 163 on evaluation of evidence by appellate Courts. He contended that the trial Court dealt with the issue of credibility of witnesses and not primarily documents. He therefore urged the Court to ignore the call by appellant for a re – evaluation of evidence.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The reply of appellant’s counsel under this issue was a didactic adventure in pointing out the perceived weaknesses in respondent’s arguments. It did not answer any new issue raised in respondent’s brief of argument as there was no new issue raised therein to be answered. I therefore discountenance the reply.

Resolution
Evaluation of evidence and ascription of probative value to it are primarily and pre – eminently the business of the trial Court which saw and heard the witnesses. An appellate Court will not lightly interfere with the same unless for compelling reasons. But where the evidence has nothing to do with the demeanour of witnesses or relates to interpretation to be placed on documents tendered before the Court or inferences to be drawn from evidence, an appellate Court will be in as good a position as the trial Court to assess the evidence on record. See Balogun V Agboola (1974) 1 All NLR (Pt. 2) 66, Thompson V Arowolo (2003) 7 NWLR (Pt. 818) 163 and BFI Group Corporation V BPE (2012) 18 NWLR (Pt. 1332) 209. In this instance, the complaint of the appellant is that the trial Court reached its conclusion or finding that only the signature of PW1 as shown in Exhibit B2 would stand as authority for withdrawal of money from respondent’s account first before putting appellant’s contrary evidence on the imaginary scale; that it was after that finding that the trial Court set out to demolish evidence given by the appellant in regard to the issue.

Did the trial Court follow the above prescriptions which are founded on fairness? The trial Court set out the evidence on both sides and the submissions of their counsel from pages 217 – 223 of the record. At page 224, the trial Court set out a summary of the grouse of respondent, to wit; unauthorized withdrawals of money from its account. From pages 228 – 229, the trial Court considered the case of the parties in respect of the withdrawals of N25,000:00 and N980,000:00 and found against the respondent to the effect that the withdrawals had been authorized by the respondent. From the last paragraph of page 229 of the record, the trial Court commenced its consideration of the claim of unauthorized withdrawal of N2,000,000:00. After finding that the PW1 was consistent in its complaint about the withdrawal (unlike other withdrawals) it found at page 230 paragraph 1 of the record that:
“The principal person, PW1, complained against in Exhibits B19 and B20 as causing the alleged loss of N2 Million was the Jos branch Manager of the defendant bank, that allegedly made the unauthorized transfer debiting plaintiff’s account with the N2M. The PW1 was adamant that he did not sign any internal voucher in the defendant’s Jos branch collecting the N2 Million. By Exhibit B2, PW1’s signature card considered together with Exhibits B10 and B11, only the signature of PW1 as shown in Exhibit B2 would stand as authority for withdrawal of money from the plaintiff’s account with the defendant Bank and I so find from the uncontested evidence before me”.

Be it noted that Exhibits B10 and B11 are respondent’s letters for opening of account and appointment of signatory by it. It was after the above finding that from pages 230 paragraph 3 to 233 that the trial Court set out to consider and reject evidence given by appellant. Thus before making the finding quoted above, the trial Court considered only evidence led by the respondent but did not consider the evidence on the point by the appellant. This violated the prescription made in Odofin V Mogaji supra. I must mention that the evidence in this matter was mainly documentary and also revolved around inferences to be drawn from evidence. This Court is in as good a position as the trial Court to evaluate the same.

It should be noted, as rightly pointed out by appellant’s counsel, that in regard to the alleged unauthorized withdrawal of the sum of N25,000:00 the trial Court at page 228 of the record found
“… as a fact on the said unchallenged piece of evidence that the N25,000 given to the DW4 by the DW2 was at the instance of the PW1 through the plaintiff’s account using DW2’s account as a conduit…”

The authorized withdrawal was made on 12/4/2001 shortly after the account was opened on 16/3/2001 and that was without the signature of the PW1 as cheques had not yet been issued in respect of the account. The transfer was on the oral instruction of the PW1. The same position applies to the authorized transfer of N980,000:00. In Exhibit B7 (the debit voucher for the transfer of N980,000:00), it is stated that the fund transfer was;
“… by your order to Royal Kindergarten’s A/c as per Telephone discussion with the B/Manager”.

The foregoing goes to confirm respondent’s case that withdrawals were done on the respondent’s account on the oral instruction of the PW1. Thus the conclusion of the trial Court at page 230 of the record quoted earlier in this judgment did not reflect the evidence on record.

There is evidence on record given by DW1 that the PW1 phoned him on 6/4/2001 and insisted on the transfer of N2,000,000:00 from respondent’s account to DW2’s account. The practice was consistent with past financial transactions between PW1 and DW2 when their amorous liaison was waxing strong. DW3 (the appellant’s Makurdi branch transfer officer) also testified of instructions to that effect from the DW1. Exhibit B5 is the instrument of the internal transfer with the stamp of the appellants dated 11/4/2005 and name of the appellant. There is no issue about the internal transfer as reflected on Exhibit A2 (respondent’s statement of account) and Exhibit B2 (Royal Kindergarten Nursery and Primary School statement of account). The issue is as to the receipt of the money at the Jos branch of the appellant by PW1.

The PW1 insisted that he did not receive the money. He testified to that effect. The trial Court believed him, giving the following reasons for doing so:
(i) that evidence was not given by the Jos branch Manager of appellant or any other person in the branch associating the PW1 with the signature on Exhibit B6 (the debit note said to evidence payment to the PW1);
(ii) that the evidence of DW1 and DW2 was tainted by the sour relationship between them and PW1;
(iii) the dubiety of using internal voucher (Exhibit 6) to conduct such a serious transaction more so as it does not bear the stamp and logo of appellant; and
(iv) use of internal vouchers for transactions involving heavy sums of money has been frowned at in Nigeria Arab Bank Ltd V Shuaibu (1991) 4 NWLR (Pt. 186) 450, 466.

The DW1, Makurdi branch manager of the appellant, testified in respect of Exhibit 6 to the effect that it showed that the PW1 collected the sum of N2,000,000:00 in his Jos account. The appellant being a corporate body that acts through human agents, could testify through any of its officers including PW1 even when the witness did not participate in the transaction. The only point is as to the weight to be attached to his evidence. See Kate Enterprises Limited V Daewoo Nigeria Limited (1985) 2 NWLR (Pt. 5) 116, Anyaebosi V R.T. Briscoe (1987) 6 SC 21, 65, Saleh V Bank of the North Ltd (2006) 6 NWLR (Pt. 976) 316, 326 – 327, UAC (Nig) Plc V Sobodu (2007) 6 NWLR (Pt. 1039) 368, 389 – 390, Interdrill (Nig) Ltd V UBA Plc (2017) 13 NWLR (Pt. 1581) 52, 69 – 70 and First Bank of Nigeria Plc V Tsokwa (2004) 5 NWLR (Pt. 866) 271, 312.

The reference to the case of Nigeria Arab Bank V Shuaibu supra by the trial Court to hold that the use of internal vouchers for transactions involving heavy sums of money was frowned at in the case seems, with due respect, to be out of context. Ndoma-Egba, JCA, at page 466 of the report stated that,
“The use of an internal voucher instead of a cheque for the withdrawal of the sum of money complained of, was undeniably contrary to the prevailing Banking Practice in the appellant’s establishment”.

In this matter, there was no evidence that the use of internal voucher for payment of money out of an account was contrary to the practice in the appellant’s bank. This is especially so since as at the time of the transaction under review, the respondent had not been issued a cheque book and there was evidence of other transfers with the use of internal vouchers. The mere fact that Exhibit 6 did not bear the logo and stamp of the appellant goes to the weight to be attached to it. In this regard, it is clear that the reference No. of Exhibit 5 (the credit advice/bank voucher of the Makurdi branch) in favour of PW1 is 4079. This number is reflected in the debit voucher by which the money was paid out in Jos (Exhibit 6). Thus with the nexus established between Exhibit 5 (which bears the printed name and stamps of both Makurdi and Jos branches) and Exhibit B6, the absence of logo and stamp in the latter is of little or no moment. Be it noted that Exhibits B7 and B8 which relate to the transfer of the sum of N980,000:00 do not bear the logo and stamp of respondent but the trial Court found that the transfer was genuine. What is sauce for the goose should also be sauce for the gander.

At the back of Exhibit B6 is a signature said to be that of PW1 evidencing the receipt of the sum of N2,000,000:00. In cross – examination, the PW1 denied the signature and added that though it looks like his signature, there is a sharp difference between it and the one on the signature card (Exhibit B2). The DW1 insisted that it was his signature. A Court of law faced with a disputed signature has several options to resolve the dispute. One of the options is that it has the power to compare the disputed signature with any other signature agreed to be an undisputed or genuine signature of the person pursuant to Section 101(1) of the Evidence Act. SeeAmadi V Orisakwe (2005) 7 NWLR (Pt. 924) 385, 397 and Tomtec (Nig) Ltd V Federal Housing Authority (2009) 18 NWLR (Pt. 1173) 330, 381.

There is no dispute that the genuine signature of PW1 is on Exhibit B2, the signature card of respondent’s account in the Makurdi branch of the appellant. I have carefully and painstakingly compared it with the signature on the back of Exhibit B6. They are the same except for minor or inconsequential differences. The signature of the PW1 on the back of Exhibit 6 is conclusive of the fact that the sum of N2,000,000:00 in the debit note was paid to him and he received it. It also dispels any issue as to the weight to be attached to the document, for the weight to be attached to a document is determined from all circumstances from which inference can reasonably be drawn regarding the accuracy or otherwise of the statement therein contained. See Agballah V Chime (2009) 1 NWLR (Pt. 1122) 373, 443 – 444. The signature of the PW1 authenticates and confirms the accuracy of the document.

It should be noted that in cross – examination at page 158 of the record, the PW1 stated that:
“I received Exhibit A2 in 2001”.

Exhibit A2 is the statement of account of the respondent which shows the various withdrawals/transactions including the sum of N2,000,000:00. PW1 further testified that Exhibit B13 (his solicitor’s letter dated 4/10/2002) was the first complaint he made about the withdrawals to the respondent. The PW1 testified that he got the statement of account after his cheque of N550,000 was returned unpaid. That cannot be correct because the unpaid cheque (Exhibit A1) is dated 22/8/2002. If he got the statement of account after the dishounour of Exhibit A1 in 2002, then he should have got the statement of account in 2002 and not in 2001. His evidence that he got it in 2002 is not true. I find therefore that he received Exhibit A2 in 2001 as admitted by him in cross – examination. The first time he raised any query on the entries therein was in his solicitor’s letter dated 4/10/2002. The inference to be drawn by the long and loud silence between his receipt of the statement of account and his first query on its entries is that the entries therein including the debit of N2,000,000.00 are correct. In Ilokson & Co (Nig) Ltd V Union Bank of (Nig) Plc (2009) 1 NWLR (Pt. 1122) 276, 311 Aka’ahs, JCA (as he then was) stated that:
“It should be noted that there is evidence that the appellant was issued with the statement of account, but it never protested against the entries made in exhibit ‘N’. It is presumed therefore that the entries were correct”.

The fact that there was a bitter turn to the amorous relationship between the PW1 and DW2 and that there was also a deterioration in the relationship between PW1 and DW1 cannot make them tainted witnesses. None of them was confronted with that suggestion in cross – examination. Those facts do not impact on the evidence before the Court which are mainly documentary. I find therefore that the respondent through PW1 authorised the transfer of the sum of N2,000,000 from its account to the account of Royal Kindergarten Nursery and Primary School and that PW1 was paid the money in Jos.
I therefore enter a negative answer to issue 2 and resolve it in favour of the appellant.

Issue 3
Appellant’s counsel set out the circumstances that led to the rejection in evidence of the regiscope film and printed picture of the person who collected the sum of N2,000,000:00 at the Jos branch of the respondent. She noted that the negative and the picture were rejected on the ground that they are private documents and could only be tendered through their maker unless the opposite side waived it. It was her submission that there is no general rule of law that evidence which is clearly relevant is excluded merely by the fact that it was not tendered through its maker and that the cardinal test of admissibility is relevance; if it is relevant and pleaded, the Court should not exclude it merely because it was not tendered through the maker. She added that this is the more so in this instance where the appellant being a corporate body acts through its staff and any of such staff would be in a position to give evidence and tender any document evidencing its transaction. Reliance was placed on Kate Enterprises Ltd V Daewoo (Nig) Ltd supra. Counsel contended that the issue of a document being tendered through the maker is relevant for the purpose of weight to be attached to the document.

Counsel submitted that the trial Court erred also in rejecting the request of appellant for it to vacate the ruling rejecting the documents and to return same to the appellant for re–tendering. She cited and relied on Aribisala V Akinyemi (2001) FWLR (Pt. 31) 2867. She concluded by further submitting that the rejection of the documents and the subsequent refusal to vacate the order led to a miscarriage of justice.

Respondent’s counsel, on his part, contended that issue 3 is incompetent. He referred to ground 5 of the (further further further) amended notice of appeal and noted that it does not complain against the interlocutory decision of the trial Court refusing to set aside its ruling and that no leave was sought to challenge the said decision. Again, he submitted that particular (f) of ground 5 of the said notice of appeal does not support the ground. He therefore urged the Court to strike out ground 5 and issue 3.

In the alternative, counsel referred to Section 83(1)(a) of the Evidence Act and submitted that since the maker of the documents did not tender them, they were rightly rejected. He submitted that relevance is not the only basis for determining admissibility but also that the prescription of the law for steps to be taken for admission of a document must be complied with. Counsel referred to and relied on Ogu V M.T. & MCS Ltd (2011) 8 NWLR (Pt. 1249) 345. It was his further submission that the fact that the appellant is a corporate body does not exempt it from complying with the provisions of Section 83(1)(b) of the Evidence Act and as such any personnel must be officially well placed to have knowledge of the particular transaction. This, he contended, the DW1 did not show.

In her reply, appellant’s counsel contended that ground 5 and issue 3 are competent as they constitute a complaint against wrongful rejection of evidence and wrongful refusal to vacate the order rejecting the documents. She further contended that leave to raise the ground was not required. She argued that the ground and issue deal with the singular issue of rejection of the documents and the refusal to set aside the ruling.

Counsel submitted that a document once relevant is admissible though its maker is not called. She placed reliance on Obembe V Ekele (2001) 10 NWLR (Pt. 722) 677 and Abadom V The State (1997) 1 NWLR (Pt. 479) 1.

Resolution
An objection to a ground of appeal or an issue for the determination of an appeal cannot be unceremoniously tucked away in respondent’s argument of the issue under attack without giving notice that it will be raised by him. If a respondent has such an objection, he is required to raise it by way of a preliminary objection (if the objection is against all the grounds and issues) or to raise it in a motion on notice (if it attacks one of several grounds/issues). See Orlu V Gogo–Abite (2010) 8 NWLR (Pt. 1196) 307, 321 and MTN Communication Ltd V Abia State Government (2016) 1 NWLR (Pt. 1494) 475, 495 – 496.
I therefore discountenance the objection raised by respondent’s counsel against ground 5 and issue 3.

Nevertheless, I am entitled suo motu to determine if a ground of appeal is competent or incompetent. In this instance, I shall take a close look at the second part of issue No. 3 which touches on the refusal of the trial Court to set aside its ruling rejecting the negative and the printed picture. Ground 5 of the further further further amended notice of appeal from which the issue is drawn states:
“5. The Trial Court erred in law when it rejected the Regiscope Film and printed picture which Defendant tendered in proof of its claim that PW1 collected the N2 Million at the Jos Branch.
PARTICULARS OF ERROR
a. The Regiscope Film and printed picture was tendered through DW1, Defendant’s Makurdi Branch Manager.
b. Plaintiff’s counsel objected on the ground that the Regiscope Film and printed picture could only be tendered through the person that took the picture or the person that printed it.
c. Defence counsel’s reply was that Defendant being a Corporate body the Regiscope film and printed picture could be tendered through any staff of the Defendant.
d. The Court rejected the Regiscope Film and printed picture on the ground that they are private documents and could only be tendered through the maker.
e. The Court dismissed Defendant’s application to set aside its ruling and return the Regiscope Film and printed picture to it”.

The thematic thrust of ground 5 is that the trial Court erred in rejecting the Regiscope film and printed picture. That is all. Particulars (a),(b),(c)and (d) flow from and are ancillary to the ground, but particular (e) raises a different point which does not flow from the ground, to wit; the subsequent and different ruling of the trial Court refusing to set aside its rejection of the documents and return the same to appellants. In other words, the appellant sought to expand the theme of ground 5 by means of particular (e). In Udoaka V Asuquo (2008) 9 NWLR (Pt. 1091) 15, 25 Owoade, JCA, stated that:
“In this respect, it must be remembered that the particulars of error in the ground of appeal cannot expand the complaint in the ground of appeal itself”. See also Briggs V C.L.O.R.S.N. (2005) 12 NWLR (Pt. 938) 595C.
Consequent on the foregoing and on the authority of Eresia – Eke V Orikoha(2010) 8 NWLR (Pt. 1197) 421, 442, I hereby strike out particular (f) of ground 5 of the grounds of appeal and also discountenance the part of issue 3 which flows therefrom and the argument thereon.

Now to the merit of the real issue in controversy. At pages 163 – 164 of the record, the DW1 testified about the taking of the regiscope picture at the Jos branch of the appellant when PW1 collected the money at the branch. He identified the negative and printed picture but the trial Court on the objection of respondent rejected them on the ground that they are private documents that could only be tendered in evidence through their maker unless the opposite side waived the requirement. Admissibility of document in a civil case is based not only on relevance but also on whether it is pleaded and admissible in law. SeeKekong V The State (2017) 18 NWLR (Pt. 1596) 108, 136, where it was held that a piece of evidence may be relevant and yet by operation of law be inadmissible.
In this instance, the DW1 testified as a senior staff of the appellant in whose office in Jos the picture was said to have been taken. I have already stated the position of the law that the appellant being a corporate body, acts by its staff and so when the DW1 testified, it was the appellant that testified through him. See Kate Enterprises Ltd V. Daewo Nigeria Ltd supra and Anyaebosi V R.T. Briscoe Ltd supra. Even if it could be said that the DW1 was not the maker of the document, that would still not be enough ground to reject the same in evidence as that point would only go to the weight to be attached to it and not its admissibility. In Lawal v U.T.C Nigeria Plc (2005) 13 NWLR (Pt. 943) 601, 620 M.D. Muhammed, JCA, opined that:
“The trial Court was under duty to admit and appraise those relevant document… It did not matter that appellant was not the maker of these documents or that the maker had not been called as a witness”. See also Attorney General of Oyo State V Fair Lakes Hotels (No. 2) (1989) 5 NWLR (Pt. 121)255.
The trial Court therefore erred in rejecting the documents. It should have admitted them and in its judgment consider their probative value.

Appellant’s counsel contended that the rejection of the document occasioned a miscarriage of justice in that it affected the finding of the trial Court that Exhibit B6 was not the document signed by PW1. Section 251 (2) of the Evidence Act provides that the wrongful exclusion of evidence shall not of itself be a ground for the reversal of any decision in any case if it appears to the Court on appeal that had the evidence excluded been admitted it may reasonably be held that the decision would have been the same. This point is difficult for me to decide because all I have before me are the negative and the printed picture. I am not in a position to say that the picture is that of the PW1. Furthermore, though I have held that the negative and picture could be tendered through the DW1, the issue of the weight to be attached to the documents still remained for the trial Court to determine, especially since the cashier who paid the PW1 and snapped the picture did not personally testify and therefore could not be cross-examined on what he did, whose picture he took and on what date as well as the development of the negative into the picture. The admissibility of a document and the weight to be attached to it are two different things. The fact that a document is admitted in evidence does not necessarily mean that it must be automatically accorded probative value. See Gbafe V Gbafe (1996) 6 SCNJ 167, 177 and Andrew V INEC (2018) 9 NWLR (Pt. 1625) 507, 560.
Though the documents were wrongly rejected, it is not shown that their exclusion resulted in a miscarriage of justice.
I therefore enter a negative answer to issue three and resolve the first part in favour of the appellant and the second part against the appellant.

Issue 4
Appellant’s counsel stated that the complaint under this issue is against the way and manner in which the trial Court proceeded in dismissing its counter – claim by suo motu raising issues and determining them against it thereby making a case for the respondent that it did not make for itself. Counsel then set out the issues the subject of the complaint and submitted that the appellant’s right to fair hearing was thereby violated thus vitiating the dismissal of the counter – claim.

Respondent’s counsel stated that the trial Court was only critically examining evidence given by the appellant before assigning value to it.

The reply of the appellant was only a didactic sermon to the effect that the argument proffered by respondent’s counsel did not constitute a valid response to appellant’s complaint. This is not the function of a reply brief. I therefore discountenance the same.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Resolution
I think it necessary to visit ground 6 of the further further further amended notice of appeal. It reads:
“6. The Trial Court erred in law when it dismissed Defendant’s counter – claim, when the counterclaim went largely unchallenged by the plaintiff both in evidence and final address.
PARTICULARS OF ERROR
a. Plaintiff’s final address failed to address the specific points raised by Defendant on the issue of the counterclaim.
b. In dismissing the counterclaim, the Court suo motu raised and determined issues other than those raised by the parties in the final addresses”.

The focus of the ground of appeal is that the trial Court wrongly dismissed the counter – claim when it was largely unchallenged. The particulars of a ground must highlight the ground of appeal and flow therefrom. They must not be independent complaint. See Globe Fishing Industry Limited V Coker supra, Oke V Mimiko supra and Waziri V Geidam supra. Particular (b) of the particulars of error above raises a different complaint of the trial Court raising some issues suo motu in dismissing the counterclaim. This is an independent complaint that touches on fair hearing and ought to be raised separately as a ground of appeal. In Udoaka V Asuquo (2008) 9 NWLR supra., 25 Owoade, JCA, opined as follows:
“If the appellant had wanted to make deprivation of fair hearing an issue, it would have been better done by making the issue of fair hearing specifically a ground of appeal and not just proliferate the matter of lack of fair hearing in the particulars of error of all the grounds of appeal contained in the notice and grounds of appeal”.
The point here is that the independent complaint of the trial Court suo motu raising and determining issues other than those raised by the parties ought to be raised in a separate ground of appeal and not be buried as a land mine in a particular of ground 6.
Consequent upon the foregoing, I strike out particular (b) of ground 6 of the further further further amended notice of appeal and the second arm of issue 4 which deals with it. The result is that since the argument of appellant’s counsel under issue 4 focuses only on the second arm of the issue, the issue left for consideration has not been argued and it is therefore deemed abandoned. I accordingly strike out issue 4 on that account.

Nevertheless, since this Court is an intermediate appellate Court, I shall proceed to consider the whole issue as argued by counsel.

Appellant’s counsel set out instances of the issues said to have been raised suo motu by the trial Court as follows:
(a) issue of appellant’s claim for solicitor’s fee not being maintainable in a subsequent action;
(b) issue of Exhibit B16 (writ of summons in Suit No. PLD/J278/2003) being filed in Plateau State and therefore beyond its jurisdiction;
(c) issue of notice of discontinuance of the suit not being sufficient evidence of malice or want of reasonable cause; and
(d) holding of the trial Court that bare oral assertion by DW1 that criminal case instituted against himself and other staff of appellant pursuant to First Information Report was terminated in their favour was not sufficient prove of the fact.

It is not permissible for a Court of law to suo motu raise an issue and decide a matter based on it without affording the parties an opportunity to be heard on it. See Kuti V Balogun (1978) 1 SC 53 and Ejezie V Anuwu (2008) All FWLR (Pt. 422) 1005.
The question is when can it be said that a Court suo motu raised an issue? In Ikenta Best Nigeria Ltd V Attorney – General of Rivers State (2008) 6 NWLR (Pt. 1084) 612, 641 the Supreme Court held that:
“A Court can only be accused of raising an issue, matter or fact suo motu if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exists in the litigation. A Judge by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inference, the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu”.
Furthermore, it has been held that applying principles of law, statutory or judicial, not cited by counsel to facts before the Court cannot amount to raising an issue suo motu. See CAC V Registered Trustees of CCC (2009) 11 NWLR (Pt. 1151) 40, 56 and MTN (Nig) Communication Ltd V Sadikusu (2014) 17 NWLR (Pt. 1436) 382, 416.
More importantly, the principle that the Courts ought not to raise an issue suo motu and decide on it without giving the parties an opportunity to be heard on it applies mainly to issues of fact. A Court can raise an issue suo motu and decide on it without the necessity of calling for addresses of parties where (a) the issue relates to its jurisdiction (b) the parties are not aware or ignore a statute which may have a bearing on the case and (c) where on the face of the proceedings serious questions of fairness of the proceedings are evident. See Angadi V PDP (2018) 15 NWLR (Pt. 1641) 1, 23, MTN Communication (Nig) Ltd V Abia State Government (2016) 1 NWLR (Pt. 1494) 475, 502 – 503, Effiom V CROSIEC (2010) 14 NWLR (Pt. 1213) 106, 133 – 134 and Ogar V Igbe (2019) 9 NWLR (Pt. 1678) 534, 553.
The points complained about by appellant’s counsel which have earlier been summarised are applications of the law to established facts, inferences or issue/s of jurisdiction. It cannot therefore be said that the right of the appellants was infracted by those points.
In any event as was opined by Eko, JSC, in Ogar V Igbe supra. 553:

“… the appellant who complains that the Court below raised an issue suo motu and decided upon it without giving the parties an opportunity to be heard on it, must go further to show that the failure to hear him on the point occasioned miscarriage of justice”.
I have perused again and again the argument of appellant’s counsel under this issue. It is not demonstrated therein that the decision of the trial Court based on the points complained of was incorrect or occasioned a miscarriage of justice. That brings the issue to a screeching halt against the appellant.
I therefore enter an affirmative answer to issue 4 and resolve it against the appellant.

On the whole and in view of my resolution of issues 1 and 2, I reach the inexorable conclusion that the appeal has merit and it is allowed in part. The judgment of the trial Court allowing the respondent’s claim for N2,000,000.00 is hereby set aside. In its stead, the claim for N2,000,000:00 for wrongful and illegal transfer of fund from respondent’s account dismissed. The trial Court’s dismissal of the counter-claim is hereby affirmed.

I assess the costs of this appeal at N200,000.00 in favour of the Appellant a against the Respondent.

IGNATIUS IGWE AGUBE, J.C.A.: I have read an advance copy of the Lead Judgment delivered by my learned Brother, Hon. Justice J.E. Ekanem, JCA. I agree with the reasoning and conclusions in the lead Judgment.

I have read the record of proceedings. The Plaintiff/Respondent founded her action on fraud. In Fabunmi vs. Agbe (1985) 1 NWLR (Pt.2) 299, Obaseki, JSC held at page 319 paragraph “C” that:
“Fraud is a serious crime and in civil matters, the particulars must be pleaded and proved strictly.”
See Ojibah vs. Ojibah (1991) 6 SCNJ 156 at 164 and Egbase vs. Oriareghan (1985) 10 SC 80.
The onus of proving fraud lies on the Plaintiff/Respondent in the Court of trial. In the Duchess of Kingston’s Case (1775-1802) All E.R. Rep. 623, De Grey C.J., held at page 629 that:- “Fraud is an extrinsic, collateral act, which vitiates the most solemn proceedings of Courts of Justice, LORD COKE says, it avoids all judicial acts, ecclesiastical or temporal.”
Fraud being a crime as shown by the authorities to discharge the onus of proof, the Plaintiff/Respondent ought to have adduced documentary evidence from the Courts perhaps supported with oral evidence to prove the requirements in Section 135(1)-(3) of the Evidence Act, 2011 to wit:
135(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceding, civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) if the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant
But Section 139 of the Evidence Act, 2011 reads that:-
“139(1) Where a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged is upon such person.
(2) The burden of proof placed by this Part upon a defendant charged with a criminal offence shall be deemed to be discharged if the Court is satisfied by evidence given by the prosecution whether on cross-examination or otherwise that such circumstances in fact exist.
(3) Nothing in Sections 135 and 140 or in subsection (1) or (2) of this section shall:
(a) Prejudice or diminish in any respect the obligation to establish by evidence according to law any acts, omissions or intentions which are legally necessary to constitute the offence with which the person accused is charged.
(b) Impose on the prosecution the burden of proving that the circumstances or facts described in subsection (2) of this section do not exist; or
(c) Affect the burden pieced on a defendant to prove a defence of intoxication or insanity.
If the Appellant is a public liability company and a commercial bank duly authorized by the Central Bank of Nigeria to carry on the business of banking, the Appellant must be operating the business of banking through human beings who may be the servants under the control of the Appellant. The relationship of a master and servant has to be pleaded and proved by the claimant to foist liability upon the Appellant. The Plaintiff/Respondent had to plead and prove that the various fraudulent withdrawals were perpetrated by the servant in the course of employment.
I therefore find merit in this appeal and it is hereby allowed I abide by the order(s) as to costs of this Appeal.

ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read in advance a copy of the lead Judgment just delivered by my Learned Brother, Joseph E. Ekanem, JCA, in which this appeal has been allowed. The resolution of the issues arising for determination have been characteristically, fully considered and resolved and, I adopt same as mine.
I therefore also allow this appeal and abide by the orders made in the lead Judgment, including the order as to costs.

Appearances:

Mrs. F.M.E. Nezan, with him, Messrs Chima Chibuzo, C.J. Nwusu and B. U. Anozie For Appellant(s)

George Eynh, Esq. (holding the brief of Akuzamus Anaekwe, Esq.) For Respondent(s)