THERESA v. UBA PLC (2022)

THERESA v. UBA PLC

(2022)LCN/16481(CA)

In The Court of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, June 01, 2022

CA/A/825/2017

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

MRS. EKE I. THERESA APPELANT(S)

And

UNITED BANK FOR AFRICA PLC RESPONDENT(S)

RATIO

WHETHER OR NOT PRELIMINARY OBJECTION CAN BE FILED AGAINST ONE OR SOME GROUNDS OF APPEAL

It is settled law that, a Preliminary Objection should only be filed against the hearing of the entire appeal and not against one or some of the grounds of appeal. In other words, a Preliminary Objection is meant to stymie or shackle the hearing of an appeal, and therefore, once it succeeds, that will put an end to the hearing of the appeal. However, where the challenge is on the competence of some of the grounds of appeal, such that if those grounds are struck out but there are other grounds(s) that can sustain the appeal, a Preliminary Objection will not be the proper procedure. Thus, such objection is not capable of truncating the hearing of the appeal. In such a situation, the proper step to take is to approach the Court by way of a Motion on Notice. See A.T.S. & Sons (Nig.) v. B. E. C. (Nig.) Ltd. (2018) 17 NWLR (Pt. 1647) 1 at 49; Zenith Bank Plc. V. John & Ors. (2015) LPELR – 24315 (SC) and PDP v. Sherrif & Ors. (2017) LPELR – 42736 (SC). Thus, in Kente v. Ishaku & Ors (2017) LPELR- 42077 (SC), the Supreme Court per Kekere-Ekun, JSC said:
“Where a Preliminary Objection is raised to the hearing of an appeal, the purpose is to truncate the hearing of the appeal in limine. In other words, the challenge must be so fundamental as to affect the competence of the entire appeal. Where the objection will not fully dispose of the appeal, a preliminary objection is not the proper approach. Where there are valid grounds that can sustain the appeal, what the respondent should do is to file a motion seeking to strike out the incompetent grounds of appeal…” PER TSAMMANI, J.C.A.

WHETHER OR NOT A PARTY WHO DISAGREES WITH THE FINDINGS OF COURT, HAS THE DUTY TO APPEAL SAME

It is settled law, that a party who disagrees with the findings of Court has a duty to appeal same, and where he fails to appeal, such findings are deemed to have been accepted. In other words, the findings of Court which are not appealed, remain subsisting and binding on the parties concerned. See Alhaji M. B. Buhari Awodi & Anor v. Mallam Sani Ajagbe (2014) 12 SCM (Pt. 2) 181 at 195, PDP v. Sylva & Ors (2017) 5 NWLR (Pt. 1557) 74, Opara v. Dowel Schlumberger (Nig.) Ltd. & Anor (2006) 15 NWLR (Pt. 1002) 342 and Daniel v. FRN (2015) LPELR – 24733 (SC). My learned brother, Mustapha, JCA in the case of Central Bank of Nigeria v. Chief Obla Ubana & Ors. (2016) LPELR – 40366 (CA) held that:”A finding which has not been appealed against remains valid and subsisting for all times, and an Appellate Court would have no jurisdiction to consider and determine such an issue, and no argument can be presented to the contrary of the ruling…” PER TSAMMANI, J.C.A.

WHETHER OR NOT A PERSON CAN BE HELD VICARIOUSLY LIABLE FOR THE CRIMINAL ACTIONS OF ANOTHER

Generally in law, every person is presumed to be responsible for his actions in criminal law. Therefore, any person who contravenes or violates the law must be personally answerable for such acts that violates the law. In other words, no persons shall be held vicariously liable for the criminal actions of another, be it his servant or agent. See PML (Nig.) Ltd. v. FRN (2018) 7 NWLR (Pt. 1619) 448, Akpa v. State (2018) 14 NWLR (Pt. 1106) 72 and APC v. PDP & Ors. (2015) 4 SCM 48 at 99. PER TSAMMANI, J.C.A.

WHETHER OR NOT A PRINICIPAL CAN BE VICARIOUSLY LIABLE FOR THE TORTUOUS ACTS COMMITED BY HIS SERVANT IN THE COURSE OF EMPLOYMENT

It should however be noted that, a principal can be vicariously liable for tortuous acts or fraudulent acts committed by his servant in the course of his employment. Thus where the act of an agent or servant was deceitful and fraudulent by virtue of his position, the principal will be liable. In other words, in a situation such as this, where a bank (Respondent) holds out its staff to a customer, it is presumed that the bank has confidence in his performance, integrity and character to conduct the business of the bank, in its relationship with customers of the bank. I am of the firm view that, in a situation like this, where the accounts manager of a customer, defrauds the customer in the course of interacting with the bank’s customer, the bank, being the principal must be held liable for the acts of its servant or officer. Thus, in Guaranty Trust Bank Plc. V. Yunana Solomon (2016) LPELR- 40342 (CA), my learned brother, Georgewill, JCA observed as follows:
“In law, a principal whether disclosed or otherwise is in a position to plead any defence available to him, but in the case of fraud, where the agent acts within the scope of his authority, actual or apparent, the act of fraud on the part of the agent binds the principal and the same goes for an act of undue influence against a third party and brought to bear on the principal by the agent. Indeed, in all these instances, it is for the problem to be sorted out between the principal and the agent and not with the third party. Thus, where there is nothing ex-facie illegal in the act of an agent on behalf of his principal, the principal is liable for the acts of the agent carried out in the course of his duties.”
The above position taken by my learned brother is a restatement of the principle of law, laid down by the Supreme Court in Ifeanyi Chukwu (Osundu) Co. Ltd. v. Soleh Boneh (Nig.) Ltd. (2000) 5 NWLR (Pt. 656) 322 at 349 – 344 Where it was held that:
“The general principle of law which has its roots in the earliest years of the common law is that a master is liable for any wrong even if it is a criminal offence or a tortuous act committed by his servant while acting in the course of his employment … The liability is dependent on the plaintiff being able to establish the servant’s liability for the tort and also that the servant was not only the mater’s servant but that he also acted in the course of his employment.” PER TSAMMANI, J.C.A.

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Kogi State High Court of Justice sitting in Lokoja, delivered by Yunusa Musa, J on the 28th day of February, 2017 in Suit No: HCL/12/2013.

By a Writ of Summons and Statement of Claim both filed on the 12/2/2013, the Appellant who was the Claimant in the Court below, sought the following reliefs:
(i) The sum of N3,000,000.00 (Three Million Naira) only in that the Defendant breached the contract agreement classified as T.D.O 28100000800 being an agreement to fix the sum of N2,000,000.00 (Two Million Naira) only at the rate of 6.7% per annum effective from 24th February, 2009 with maturity date of 24th February, 2011 whereof the Defendant terminated the agreement unilaterally without recourse to the Claimant.
(ii) Declaration that the Defendant was negligent in the management and administration of the fixed deposit contract by diversion of its payment into their personal interest without recourse to the contract.
(iii) A Declaration that the Defendant breached the agreement between the parties i.e. fix the sum of N2,000,000.00 (Two Million Naira) only and to fix the investment interest only for two years.
(iv) An Order of this Honourable Court that the Claimant is entitled to compensation by way of general damages for breach of contract by the Defendant.
(v) The Claimant claims the sum of N3,000,000.00 (Three Million Naira) only as general damages.
(vi) ALTERNATIVELY, the Claimant claims the sum of N2,000,000.00 at an interest of 22% per annum with effect from 24th February, 2011 until judgment and 10% interest thereafter until judgment sum is finally liquidated.

The Respondent who was Defendant in the trial Court filed a Statement of Defence and Counter-Claim. By the said Counter Claim, the Defendant/Respondent claimed as follows:
(i) The sum of N950,260.34 representing the current debt balance on the Claimant account number 1008096307 as at 12th April, 2013.
(ii) 10% of the judgment sum from the date of judgment to the date the debt is finally liquidated.
(iii) Interest at the rate of 22% and other agreeable rate contained in the offer letter to the Claimant dated March 02, 2010 till the date of judgment.

At the trial before the lower Court, the Appellant testified as CW3 and called two other witnesses who testified as CW1 and CW2 respectively. The Defendant/Respondent called only one witness who testified as DW1. Several documents were tendered and admitted at the trial by both parties.

The case as presented in the trial Court is that, the Claimant operated three accounts with the Respondent, to wit: a savings account, current account and a fixed deposit account. That the Appellant then applied for overdraft facility of N1.8 Million, and used the fixed deposit account as security/collateral for the loan. That right of lien was also given to the Respondent. That while the cash collateral facility was still running and unpaid, the Appellant withdrew the sum of N1.8 Million from the fixed deposit account used as collateral for the loan in breach of the terms and conditions for the loan.

At the close of evidence, counsel for the parties filed and exchanged Written Addresses, and in a judgment delivered on the 28/2/2017, the trial Court dismissed the Plaintiff/Appellant’s claim but allowed the Counter-Claim. Unhappy with the Judgment, the Claimant filed this appeal. The Notice of Appeal consisting of six (6) Grounds of Appeal was filed on the 26/5/2017. The parties then filed and exchanged Briefs of Arguments. The Appellant’s Brief of Arguments was filed on the 12/7/2021 but deemed filed on the 09/11/2021. Therein, five issues were distilled for determination as follows:
1. Whether the non-joinder of Sunday Ojo, the Appellant’s accounting officer who at all time material to the transaction, an agent of the Respondent exonerates the Respondent from being liable for the negligence handling (sic) of the account of the Appellant? [Ground One]
2. Whether the agent is liable for an act committed negligently or fraudulently in the performance of his official duties while in the employment of the master who is a disclosed principal of the agent? [Grounds Two and Three]
3. Whether a trial Judge can on his own raise an issue suo motu and resolve it without calling the parties to address on that issue before resolving such issue? [Ground Four]
4. Whether an artificial person who works, acts and sees through its agent to defraud its customer? [Ground five]
5. Whether from the entire record of proceedings of the lower Court, the Respondent has proved its Counter-Claim as required by law to warrant judgment to be entered in favour of the Respondent in this suit? [Ground six]

The Respondent’s Brief of Argument was filed on the 01/9/2021 but deemed filed on the 09/11/2021. Four (4) issues were raised for determination as follows:
1. Whether in view of the evidence both oral and documentary ones on the printed record before this Honourable Court, the trial Court was right when it upheld the Counter-Claim of the Respondent? [Ground Six]
2. Whether the issue of non-joinder of one Sunday Ojo whom a serious criminal allegation of fraud was leveled against by the Appellant herein was raised suo motu by the trial Court in view of the Respondent’s trial Written Address and reply on point of law on the Record? [Ground Two]
3. Whether the trial Court was right when it held that there is no vicarious liability or agency in the criminal allegation/conduct? [Ground Four]
4. Whether the trial Court was right when it held that the Appellant failed to prove her? [Ground One].

The Appellant then filed an Appellant’s Reply Brief on the 08/11/2021 which was also deemed filed on the 09/11/2021.

Having considered the evidence on the record and the issues raised by the parties in their respective Briefs of Arguments, I am of the view that, the issues formulated by the Appellants have effectively set out the issues to be determined in this appeal. However, issues 1, 2, 3 and 4 shall be considered together while issue 5 shall be considered alone. Before I proceed, I find it necessary to point out that the Respondent raised and argued a Preliminary Objection at pages 6 – 9 of the Respondent’s Brief of Argument. In that respect, the objection shall be determined first before I proceed on the substantive appeal, if need be.

Now, arguing the objection, learned counsel for the Respondent contended that, grounds one and three of the Notice of Appeal alleged errors of law and misdirection on the facts at the same time. The cases of Rotimi v. Faforiji (1999) 6 NWLR (Pt. 606) 305; Elendu v. Ekwoaba (1995) 3 NWLR (Pt. 386) 704; Akuchie v. Nwamadi (1992) 8 NWLR (Pt. 258) 214, were then cited to submit that, the said grounds of appeal are therefore incompetent and should be struck out. It was then submitted that, issues one and two having arisen from those incompetent grounds of appeal, are also incompetent and liable to be struck out. The cases of Laah v. Opaluwa (2004) 9 NWLR (Pt. 879) 555, Jev & Anor. v. Iyortyom (2014) LPELR – 23000 (SC) and Akuchie v. Nwamadi (supra) were then relied on to urge us to strike out grounds 1 and 2 of the Notice of Appeal and issues 1 and 2 distilled therefrom.

In response to the objection, learned counsel for the Appellant contended that, the entire procedure employed by the Respondent in challenging the competence of grounds 1 and 2 and issues 1 and 2 distilled therefrom is wrong. That the Respondent ought to come by way of Motion on Notice. We were therefore urged to hold that, the preliminary objection raised by the Respondent, not having been initiated by way of Motion on Notice is incompetent and ought to be discountenanced.

It is settled law that, a Preliminary Objection should only be filed against the hearing of the entire appeal and not against one or some of the grounds of appeal. In other words, a Preliminary Objection is meant to stymie or shackle the hearing of an appeal, and therefore, once it succeeds, that will put an end to the hearing of the appeal. However, where the challenge is on the competence of some of the grounds of appeal, such that if those grounds are struck out but there are other grounds(s) that can sustain the appeal, a Preliminary Objection will not be the proper procedure. Thus, such objection is not capable of truncating the hearing of the appeal. In such a situation, the proper step to take is to approach the Court by way of a Motion on Notice. See A.T.S. & Sons (Nig.) v. B. E. C. (Nig.) Ltd. (2018) 17 NWLR (Pt. 1647) 1 at 49; Zenith Bank Plc. V. John & Ors. (2015) LPELR – 24315 (SC) and PDP v. Sherrif & Ors. (2017) LPELR – 42736 (SC). Thus, in Kente v. Ishaku & Ors (2017) LPELR- 42077 (SC), the Supreme Court per Kekere-Ekun, JSC said:
“Where a Preliminary Objection is raised to the hearing of an appeal, the purpose is to truncate the hearing of the appeal in limine. In other words, the challenge must be so fundamental as to affect the competence of the entire appeal. Where the objection will not fully dispose of the appeal, a preliminary objection is not the proper approach. Where there are valid grounds that can sustain the appeal, what the respondent should do is to file a motion seeking to strike out the incompetent grounds of appeal…”

In the instant case, there are six Grounds of Appeal in the Notice of Appeal. However, the Respondent challenges only two (2) out of the six (6) grounds of appeal. By the established authorities therefore, the preliminary objection is misconceived. It is therefore incompetent, and it is hereby struck out.

Now on the main appeal, I had indicated that issues 1 and 2 will be taken together. Therefore, learned counsel for the Appellant contended that, the gist of this case is that, the Appellant was influenced into taking a loan facility to the tune of N1.8 million and used her fixed deposit account as collateral. However, that the Respondent, without the consent or authority of the Appellant, transferred the money in the fixed deposit account into the Appellant’s savings account. That, at all material time, the transaction was between the Appellant and the Respondent and one Sunday Ojo who was the accounting officer in charge of the Appellant’s accounts with the Respondent and duly appointed by the Respondent.

That, the said Sunday Ojo carried out his assignment in his official capacity as agent of the Respondent. It was therefore submitted that, the Respondent being a limited liability company, it was liable for every act of negligence committed by its officers in the course of carrying out their duties. Section 66(2) of the Companies and Allied Matters Act was then cited to further submit that, the Respondent acts through its officers and therefore liable for the acts of those officers in the course of carrying the business of the company.

Learned counsel for the Appellant went on to submit that, there is no provision in the Companies and Allied Matters Act (CAMA) that requires that, when an artificial person is sued, it must be sued along with its officer(s). That at all times material to the transaction between the Appellant and the Respondent, Sunday Ojo was an officer and agent of the Respondent; and therefore a disclosed agent of the Respondent. That in the circumstances, all acts done by Sunday Ojo are acts of his principal. The case of Trenco (Nig.). Ltd. v. African Real Estate Ltd. (1978) 1 LRN 1463 was cited in support.

It was further submitted by learned Counsel for the Appellant that, an agent acting for a disclosed principal has no burden because the acts of the agent is that of the principal. That there is evidence on record that, Sunday Ojo Michael was an Assistant Banking Officer with the Respondent. That in that respect, the proper party to be sued is the disclosed principal, for the acts and omissions of such agent. The cases of Amadiume v. Ibok (2016) 6 NWLR (Pt. 975) 158, Ataguba & Co. v. Gura Nigeria Ltd. (2005) 8 NWLR (Pt. 927) 429 at 452 and Ogbaegbe v. FBN Plc. (2005) 18 NWLR (Pt. 957) 357 were cited in support. We were accordingly urged to hold that, the suit instituted against the Respondent is competent, and therefore, the Respondent is liable for the negligent act of Sunday Ojo who transferred the money from the Appellant’s fixed deposit account into the savings account without the authorization nor consent of the Appellant. That in the circumstances, the Respondent was in breach of the agreement between the parties for the loan acquired by the Appellant.

Learned counsel for the Appellant went on to submit that, the Appellant did make it clear that the fixed deposit account was terminated and the money therein transferred into her saving account without minding the fact that the fixed deposit account had been used as collateral by the Appellant for the loan of N1.8 million. The cases of UTC (Nig.) Plc. V. Philips (2012) 6 NWLR (Pt. 1295) 136 at 191 and Dada v. Williams (2013) 2 NWLR (Pt. 1338) 260 at 278 were cited in support, and to further submit that, the Respondent unequivocally admitted that it breached the agreement between her and the Appellant. That in the circumstances, the following facts were not controverted by the Respondent:
(a) that the Appellant maintained savings and fixed deposit account with the Respondent.
(b) that the money in the fixed deposit account was transferred to her savings account without her authority nor consent, in breach of the loan agreement.
(c) that Sunday Ojo who perpetrated the act was an officer of the Respondent at the material time.
(d) that DW1 admitted that it was one Abubakar Sani the Manager of the Respondent that dropped the amount.
(e) that the Appellant and CW3 stated that when they discovered, they pleaded that Exhibit 5 which the Appellant through her son for N1.8 million in her name.

The case of Garba v. Zaria (2005) 17 NWLR (Pt. 935) 55 at 57 was then cited to submit that, a fact which is neither controverted nor denied, need no further proof, and that same can be believed and acted upon by the Court. That to further support the case of the Appellant that the Respondent was in breach, the Appellant tendered Exhibits SSD1 and SSD2, which are Judgments of Senior Magistrate which show that the Respondent prosecuted Sunday Ojo for breach of trust.

Learned counsel for the Appellant also contended that, the law is clear that the Respondent cannot transfer money in the account of a customer into another account owned by the same customer with the bank. The case of B.O.N. Ltd. v. Akintoye (1999) 12 NWLR (Pt. 631) 392 at 406 was cited in support. That, the Appellant testified under cross-examination that her money in the fixed deposit account was transferred to her savings account with her consent. Therefore, that there is nothing contradicting the testimony of the Appellant, that the fixed deposit account was closed without her consent before the maturity date. That, there are also no contradictions that the Appellant transferred N1.8 million into the fixed deposit account in her name.

Learned counsel for the Appellant then submitted that the Respondent having been in clear violation or breach of the contract by transferring the Appellant’s money in her fixed deposit account to her savings account without notice or the consent of the Appellant, was in breach of the agreement. The case of Greif (V.L) Containers Plc. V. O.P. & Ind. Ltd. (2015) 8 NWLR (Pt. 1461) 260 was cited in support, and to further submit that, the breach having been proved, the Appellant was entitled to damages. The case of Enekwe v. I. M. B. Nig. Ltd. (2006) 19 NWLR (Pt. 1013) 113 at 180 was also cited to submit that the Respondent could therefore not benefit from its own wrong. We were then urged to hold that, Sunday Ojo was an employee of the Respondent at the time material to the transaction; and acted for a disclosed principal. The case of Amadi v. Orisakwe (2005) NWLR (Pt. 924) 385 was then cited to submit that, the breach having been proved, the Appellant was entitled to damages.

Learned counsel for the Appellant went on to submit that, the Appellant’s claim at the trial Court was for negligence in the management and administration of her fixed deposit account contract between her and the Respondent by its diversion for the Respondent’s personal interest without recourse to the contract between them. That in the resolution of the issue, the trial Court diverted from the subject matter presented before it and delved into the issue of joinder of parties. The case of Wassah & Ors v. Kara & Ors (2015) 14 NWLR (Pt. 1449) 374 at 407 was then cited to submit that, a Court is not allowed to go outside the case presented before it. The case of F.C.D.A Staff Multipurpose (Coop.) Society & Ors. v. Samchi & Anor (2018) LPELR – 44380 (CA) was also cited to submit that, the trial Court failed to properly evaluate the evidence placed before it by the parties and delved into the issue of joinder of one Sunday Ojo who at all material time was the accounting officer for the Appellant’s account. That, the said Sunday Ojo was an employee of the Respondent and therefore its agent.

Learned counsel for the Appellant went on to submit that, throughout the trial, the Respondent never raised the issue of joinder of Sunday Ojo. That, by Order 14 Rule 4 of the Kogi State High Court (Civil Procedure) Rules, 2016, the Respondent had the right to join the said Sunday Ojo for the purpose of defending the allegations against him, either as a party or a witness. Furthermore, that (assuming but not conceding), the said Sunday Ojo was a necessary party to the suit, the trial Court could raise the issue of joinder of the said Sunday Ojo and call on the parties to address on it. The cases of Araka v. Ejeugwu (1999) 4 NWLR (Pt. 589) 830 and Effiom v. C.R.S. I. E. C. (2010) 4 NWLR (Pt. 1213) 133 were cited in support, and to further submit that, a Court is not permitted to raise an issue suo motu and resolve it without hearing from the parties. The cases of Newswatch Communication Ltd v. Attah (2006) All FWLR (Pt. 318) 580 and Dapianlong v. Dariye (2007) 8 NWLR (Pt. 1036) 239 at 285 were then cited to urge us to hold that, the trial Court was in error when it raised the issue of joinder of Sunday Ojo on its own and resolved it without hearing the parties on the issue, thereby reaching a decision in breach of the parties’ right to fair hearing.

On issue four (4), learned counsel for the Appellant contended that, the Respondent being an artificial person, was vicariously liable for the acts of its servants committed in the course of their official duties or within the scope of their employment. That from the entire record of appeal, it is not in doubt that Sunday Ojo was at all time material to the transaction, was the accounting officer of the Appellant’s account with the Respondent, and therefore, acted as agent for the Respondent. The case of FBN Plc. V. Onukwugha (2005) 16 NWLR (Pt. 950) 120 at 146 was then cited to submit that, in law, where a natural person acts as agent for a disclosed principal, the acts of the agent are the acts of the principal.

Learned counsel for the Appellant then argued that, it is clear from the evidence on record and particularly Exhibits D1, D3, D4 and the judgment of the Senior Magistrate (Exhibit XXD1), that Sunday Ojo while in the employment of the Respondent mishandled the Appellant’s account by collecting N1.8 million without returning it to the bank. That the trial Court agreed and came to the conclusion that, Sunday Ojo defrauded the Appellant, and therefore, it means that, there was no need for further proof as such evidence was against the Respondent. The cases of Ibrahim Idris v. ANPP (2008) 8 NWLR (Pt. 1088) 1 at 39 and N.I.I.A v. Ayanfalu (2006) 2 NWLR (Pt. 1018) 246 at 264 were cited in support. It was then submitted that, the trial Court however held that, it was doubtful if the Respondent instructed Sunday Ojo to defraud the Appellant, as there was no such evidence before the Court. The cases of Abubakar v. Yar’adua (2009) All FWLR (Pt. 457) 1, Wassah & Ors. v. Kara & Ors. (2015) 4 NWLR (Pt. 1449) 374 and Adefulu v. Okulaja (1996) 9 NWLR (Pt. 495) 66 were also cited in support and to further submit that, there need not be specific instruction of the Respondent to her agent to defraud a customer, since the Respondent being an artificial person is bound by the act of her officers acting within his official capacity.

The response of the Respondent is in issues 2 and 3 formulated by the Respondent. Therein, learned counsel for the Respondent contended that, the issue of non-joinder of one Sunday Ojo whom the Appellant leveled serious criminal allegations against was not raised by the learned trial Judge suo motu as alleged by the Appellant. Rather, that it was the Respondent who raised same because, by Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), a person cannot be indicted of committing a crime without affording him the opportunity to defend himself. The cases of Buhari v. INEC (2008) 4 NWLR (Pt. 1078) 546; A.C. v. INEC (2007) 18 NWLR (Pt. 1048) 222 and Amaechi v. INEC (2007) 18 NWLR (Pt. 1065) 105 were cited in support. That, the issue of non-joinder of Sunday Ojo was raised in the Respondent’s Written Address and Reply on point of law at the trial, to which the Appellant responded.

Learned counsel for the Respondent insisted that, the issue of non-joinder of one Sunday Ojo against whom the Appellant leveled criminal allegation was not raised suo motu by the trial Court but the issue was raised and canvassed in the Written Addresses of counsel filed at the trial. That in any case, the Appellant anchored her case on criminal allegation of fraud against one Sunday Ojo. That, due to the criminal allegation against the said Sunday Ojo by the Appellant, the Respondent laid a complaint and the said Sunday Ojo was arrested and charged before a Senior Magistrate Court. That the Appellant, however, refused to give evidence against the said Sunday Ojo due to the closeness of Sunday Ojo to her family, as a result of which the said Sunday Ojo was acquitted and discharged.

It is thus contended by learned counsel for the Respondent that, the Appellant having alleged serious criminal allegation of fraud against Sunday Ojo, it behooves the Appellant to have joined the said Sunday Ojo so that he can be heard as required by Section 36(1) of the 1999 Constitution. That criminal allegation of fraud must be responded to personally as there is no vicarious liability for the criminal acts of another. The cases of APC v. PDP (2015) 15 NWLR (pt. 1481) 1 at 73; Dina v. Daniel (2010) 11 NWLR (Pt. 1204) 137 at 158 and Adeoye v. Olorunoje (1996) 2 MAC 256 were cited in support. That the onus was therefore on the Appellant to prove same beyond reasonable doubt. Section 135 of the Evidence Act 2011 and the cases of P. I. P. Ltd. v. Trade Bank (Nig.) Plc. (2009) 13 NWLR (Pt. 1159) 577 at 633 and Ottih v. Nwanekwe (1990) 3 NWLR (pt. 140) at 560 were cited in support. Learned counsel for the Respondent then wondered how, the Appellant who anchored her case on allegation of fraud by Sunday Ojo, could prove same beyond reasonable doubt in the absence of pleading the particulars of fraud. The cases of APC v. PDP (supra) at 78, Udom v. Umana (No. 1) (2016) 12 NWLR (Pt. 1526) 179, Okpoko Comm. Bank Ltd. v. Igwe (2013) 15 NWLR (Pt. 1376) 167, Agi v. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121, etc, were also cited in support.

Learned counsel reproduced the evidence of CW1 and CW2 to contend that, the Written Statement on Oath of CW1 was not signed before a Commissioner for Oaths or the person authorized to administer oaths as required by Section 13 of the Oaths Act. The case of Ashiru v. INEC (2020) 16 NWLR (Pt. 1751) 416 at 441 was then cited to submit that, the trial Court was right when it discountenanced same. That the depositions in paragraph 6 of the Written Statement on Oath of CW2 on the issue of mismanagement of her account was based purely on what the Appellant told him. That by Section 38 of the Evidence Act, 2011, such statement is inadmissible. The case of Doma v. INEC (2012) 13 NWLR (Pt. 1317) 297 at 328 – 329 were cited in support. That in the circumstances, the learned trial Judge rightly treated such evidence from CW2 with disdain. The cases of Akeredolu v. Mimiko (2014) 1 NWLR (Pt. 1388) 402, Okereke v. Umahi (2016) 11 NWLR (Pt. 1524) 438, Fayemi v. Oni (2009) 7 NWLR (Pt. 1140) 223 and Adelekun v. Oruku (2006) All FWLR (Pt. 308) 1300, etc, were also cited in support.

It is further contended that, the Appellant also admitted under cross-examination that, the Respondent had been informing her of all transactions. The cases of Ogbom v. Okowa (2016) 11 NWLR (Pt. 1522) 84 134 and Omisore v. Aregbesola (supra) at 298 – 299, were cited to submit that the Appellant is therefore bound by her testimony and that of CW1 and CW2. That, in any case, the Appellant did not tender any document to show that Sunday Ojo was specifically assigned to her as her accounting officer.

Learned counsel for the Respondent went on to submit that, the Appellant operated three distinct accounts with the Respondent; to wit: savings account, current account and fixed deposit account. That, the parties and their witnesses are agreed that the fix deposit account was used as security for the loan facility as evidenced by Exhibits DA9 and DAI 1. That, while the fix deposit account was yet to mature, and the loan facility repaid, the Appellant withdrew the sum of N1.8 million on the 06/9/2010 and N100,000.00 on the 31/8/2010 from the fixed deposit account used as collateral for the loan with the aim of frustrating the Respondent from frustrating the loan. It was thus submitted that the Appellant was therefore in breach of the loan agreement; and accordingly not entitled to protection of the law. The cases of N.B.T. C. Ltd. v. Narumal (Nig.) Ltd. (1986) 4 NWLR (Pt. 33) 117, Ibrahim v. Osunde (2009) 6 NWLR (Pt. 1137) 382, Oilfield Supply Centre Ltd. v. Johnson (1987) 2 NWLR (Pt. 58) 625 and Aboseldehyde Lab. Plc. V. U.M. B. Ltd. (2013) 13 NWLR (Pt. 1370) 91 were cited in support.

Learned counsel referred to paragraphs 5, 6 and 7 of the Statement of Defence to submit that the Appellant had admitted under cross-examination that, the Respondent informed her of all transactions before she applied for the loan facility on the 24/2/2010 as evidenced by (Exhibit 10). The cases of Ilokson & Co. (Nig.) Ltd. v. U.B.N. Plc. (2009) 1 NWLR (Pt. 1122) and Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 353 at 396 were cited in support, and to urge us to hold that the Appellant breached the terms and conditions of the loan facility granted to her by the Respondent.

In reply on Point of Law, learned counsel for the Appellant contended that the issue of fraud was raised by the Respondent who had taken Sunday Ojo to Court on a criminal charge and implored the Appellant to testify against the said Sunday Ojo. However, that the position of the Appellant remains that the acts of Sunday Ojo as agent of the Respondent remain the acts of the Respondent. Learned counsel then insisted that the issue of joinder or non-joinder of Sunday Ojo was never pleaded as an issue by the Respondent and the Appellant; and therefore, the learned trial Judge erred when he dwelled on it in finding for the Respondent. That in so finding, the learned trial Judge did not advert his mind to the fact that the issue of non-joinder was only raised in the address of counsel.

Learned counsel for the Appellant then cited the cases of Unity Bank Plc. V. Ahmed (2020) 1 NWLR (Pt. 1705) 364; GTB Plc. V. Noble (2019) 14 NWLR (Pt. 1693) 393; Pascutto v. Adecentro Nig. Ltd. (1997) 11 NWLR (Pt. 529) 467; Mbata v. Amanze (2018) 15 NWLR (Pt. 1643) 175 and Danjuma v. S.C.C. (Nig.) Ltd. (2017) 6 NWLR (Pt. 1561) 175, etc, to reiterate that, in law, the Respondent being a disclosed principal is personally liable for the acts of its agent. That, there is however, no liability in criminal law for criminal acts committed by her agent. The cases of John Davids Const. Co. Ltd. v. Riacus co. Ltd. (2019) 16 NWLR (Pt. 1697) 155 at 181; FBN Plc. V. Onukwugha (supra) and Dike v. Kay-Kay Const. Ltd. (2017) 14 NWLR (Pt. 1584) 1 were cited in support. We were accordingly urged to resolve the issues herein, in favour of the Appellant.

Now, I have carefully pondered on the reliefs claimed by the Appellant. It appears to me, upon consideration of those reliefs, that the claims of the Appellant are centered on reliefs (ii) and (iii) which are declaratory reliefs. Reliefs (i), (iv) and (v), including the Alternative Relief, are dependent on the success of reliefs (ii) and (iii). If I am right, I find it necessary to iterate that, in an action based on declaratory relief(s), the onus is on the claimant to prove his case by credible evidence. In doing that, he cannot rely on the weakness of the defence, though he may rely on such weakness to strengthen his case. See Wing Commander Jibril Balla Adamu (Rtd.) v. Nigerian Airforce & Anor, (2022) LPELR-56587 (SC); Mrs. M. Adama & Ors. v. Kogi State House of Assembly & Ors. (2019) LPELR – 47424 (SC) and Dumez (Nig.) Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361. The burden remains on the claimant except where the Defendant has filed a counter-claim, in which case, the onus will also rest on the Defendant to adduce evidence in proof of the counter-claim.

In the instant case, it is apparent from reliefs (ii) and (iii), that the claimant/Appellant claimed a declaration that, the Defendant/Respondent was in breach of the contract of banker/customer relation as a result of the Respondent’s negligent management of her fixed deposit with the Respondent. The Appellant contended that, she took out a loan of N1.8 million from the Respondent and used her fixed deposit account as security for the loan. That, the fixed deposit maturity date was 24/2/2011 but the Respondent, contrary to their agreement terminated the fixed deposit account in August, 2010 and transferred the money into her savings account without her notice or consent. That it was one Sunday Ojo her accounts manager who advised her to take the loan and that the bank will in turn give out the money as loan to individuals at 20% interest per month. In the determination of these issues, the learned trial Judge held as follows:
“I have carefully considered the evidence marshaled by the claimant and her witnesses. From the evidence of the claimant and her witnesses vis-a-vis the pleadings of the claimant, could it be said that the claimant has proved her case.
The claimant’s contention is that Sunday Ojo her accounting officer advised her that she should take a loan of N1.8 Million and the bank will give out as loan to individuals at 20% interest per month. That N1.8 Million collected by the bank to fix has no record. It is the argument of the defence counsel that the fraudulent act of Sunday Ojo being complained of in paragraph 36 and 38 of her pleadings and paragraphs 24, 27 and 28 of her reply did not join Sunday Ojo in this suit in line with Section 36 of the 1999 Constitution nor prove the said fraud manipulation beyond reasonable doubt as required under Section 135 of the Evidence Act, 2011. He relied on APC v. PDP (2015) where the Supreme Court held that “there is no vicarious liability in Criminal Law. Anyone who contravenes the law should carry his own cross.”

The learned trial Judge went on to hold at page 171 of the record of appeal as follows:
“It is the argument of learned counsel for the claimant that Sunday Ojo, the accounting officer of the claimant transacts with the claimant in his official capacity, therefore, the defendant should be liable for all the act of the said Sunday Ojo.
I think I should disagree with learned counsel for the claimant. It is not in dispute that the act of Sunday Ojo, the claimant’s accounting officer from the evidence placed before the Court is criminal. There are plethora of authorities that a master cannot be liable for criminal conduct of its agent. That is to say, that a principal or master cannot be vicariously liable for the act of an agent or servant.”

It was therefore the finding of the learned trial Judge that, the claim of the Appellant in the Court below, was based on breach of contract due to the negligent, and fraudulent act of one Sunday Ojo in the management of the accounts of the Appellant. The learned trial Judge then concluded at page 372 of the record of appeal as follows:
“It is in the light of the foregoing that I am of the view that Sunday Ojo being a principal actor in this case cannot be left out of this case. He ought to have been joined in this suit as there is no evidence before this Court that Sunday Ojo’s fraudulent act was directed by the defendant. Rather, the criminal act of Sunday Ojo ought to have been born (sic: borne) by Sunday Ojo and only Sunday Ojo alone and not allowing him to go scout (sic) free. At best the claimant ought to have called Sunday Ojo as witness to even tell the Court that he was directed by the defendant to defraud the claimant instead of leaving the Court to conjecture. Sunday Ojo is the principal actor in all the transactions culminating into this suit. It is in evidence that Sunday Ojo is family friend of the claimant… It is not in doubt that Sunday Ojo defrauded the claimant. What is in doubt is as to whether the defendant instructed Sunday Ojo to defraud the claimant.

The evidence is not before this Court.”

Now, what I have reproduced above are fundamental findings of the trial Court. In other words, it was the finding of the trial Court that one Sunday Ojo, the accounts manager of the Appellant and an officer of the Respondent, was engaged in fraudulent dealings with the accounts of the Appellant. These, as I have stated above, are fundamental findings of the trial Court which have not been appealed against. It is settled law, that a party who disagrees with the findings of Court has a duty to appeal same, and where he fails to appeal, such findings are deemed to have been accepted. In other words, the findings of Court which are not appealed, remain subsisting and binding on the parties concerned. See Alhaji M. B. Buhari Awodi & Anor v. Mallam Sani Ajagbe (2014) 12 SCM (Pt. 2) 181 at 195, PDP v. Sylva & Ors (2017) 5 NWLR (Pt. 1557) 74, Opara v. Dowel Schlumberger (Nig.) Ltd. & Anor (2006) 15 NWLR (Pt. 1002) 342 and Daniel v. FRN (2015) LPELR – 24733 (SC). My learned brother, Mustapha, JCA in the case of Central Bank of Nigeria v. Chief Obla Ubana & Ors. (2016) LPELR – 40366 (CA) held that:”A finding which has not been appealed against remains valid and subsisting for all times, and an Appellate Court would have no jurisdiction to consider and determine such an issue, and no argument can be presented to the contrary of the ruling…”

The above excerpt of the decision of my learned brother eloquently captures the principle of law on the issue. I have taken time to study the six Grounds of Appeal; and nowhere is it alleged that the learned trial Judge erred in finding that the complaint of the Appellant in the Court below, centered on the fraudulent act of the Sunday Ojo. It therefore remains established that the claim(s) of the Appellant is built on the fraudulent act of Sunday Ojo that culminated in the alleged breach of contract.

Now, it is apparent, that the learned trial Judge found, on the evidence led by the Appellant that the acts of Sunday Ojo were criminal acts and that there is no vicarious liability in criminal law. Generally in law, every person is presumed to be responsible for his actions in criminal law. Therefore, any person who contravenes or violates the law must be personally answerable for such acts that violates the law. In other words, no persons shall be held vicariously liable for the criminal actions of another, be it his servant or agent. See PML (Nig.) Ltd. v. FRN (2018) 7 NWLR (Pt. 1619) 448, Akpa v. State (2018) 14 NWLR (Pt. 1106) 72 and APC v. PDP & Ors. (2015) 4 SCM 48 at 99.

It should however be noted that, a principal can be vicariously liable for tortuous acts or fraudulent acts committed by his servant in the course of his employment. Thus where the act of an agent or servant was deceitful and fraudulent by virtue of his position, the principal will be liable. In other words, in a situation such as this, where a bank (Respondent) holds out its staff to a customer, it is presumed that the bank has confidence in his performance, integrity and character to conduct the business of the bank, in its relationship with customers of the bank. I am of the firm view that, in a situation like this, where the accounts manager of a customer, defrauds the customer in the course of interacting with the bank’s customer, the bank, being the principal must be held liable for the acts of its servant or officer. Thus, in Guaranty Trust Bank Plc. V. Yunana Solomon (2016) LPELR- 40342 (CA), my learned brother, Georgewill, JCA observed as follows:
“In law, a principal whether disclosed or otherwise is in a position to plead any defence available to him, but in the case of fraud, where the agent acts within the scope of his authority, actual or apparent, the act of fraud on the part of the agent binds the principal and the same goes for an act of undue influence against a third party and brought to bear on the principal by the agent. Indeed, in all these instances, it is for the problem to be sorted out between the principal and the agent and not with the third party. Thus, where there is nothing ex-facie illegal in the act of an agent on behalf of his principal, the principal is liable for the acts of the agent carried out in the course of his duties.”
The above position taken by my learned brother is a restatement of the principle of law, laid down by the Supreme Court in Ifeanyi Chukwu (Osundu) Co. Ltd. v. Soleh Boneh (Nig.) Ltd. (2000) 5 NWLR (Pt. 656) 322 at 349 – 344 Where it was held that:
“The general principle of law which has its roots in the earliest years of the common law is that a master is liable for any wrong even if it is a criminal offence or a tortuous act committed by his servant while acting in the course of his employment … The liability is dependent on the plaintiff being able to establish the servant’s liability for the tort and also that the servant was not only the mater’s servant but that he also acted in the course of his employment.”
It is clear therefore, that, where the relationship of master/servant has been established, the master will be liable for the acts of the servant even if done fraudulently. What is necessary to be established is that, the servant acted within his actual or apparent authority. The act of the servant will be deemed to have been done in the course of his employment, even if what was done by the servant was wrongful and unauthorized way of performing the duty the servant was employed to do. See First Bank (Nig.) Plc. V. Chief Charles Orakwue Azifuaku (2016) LPELR – 40173 (CA), Union Bank (Nig.) Ltd. v. Ajagu (1990) 1 NWLR (Pt. 126) 326 and Agbanelo v. Union Bank (Nig.) Ltd. (2000) 7 NWLR (Pt. 666) 534.

In the instant case, the evidence on record established, without any doubt, that Sunday Ojo was an employee or servant of the Appellant. The evidence also showed that, the said Sunday Ojo was at all time material to this case, the officer assigned by the Respondent as the accounts officer of the Appellant’s accounts with the Respondent. In that capacity, Sunday Ojo was assigned the responsibility of managing the accounts of the Appellant. The facts constituting the fraudulent acts of Sunday Ojo were pleaded in paragraphs 7, 9, 10, 11, 13, 18 and 19 of the statement of claim as follows:
“7. The claimant states that, the bank through the accounting officer, Sunday Ojo advised her that she should take out a loan of N1.8 million and the bank will invest it outside as loan to individuals at 20% per month and he will one month rent to service the loan and invest the others for the education of the children and she agreed and her accounting officer collected the N1.8 million from her to invest and the fixed deposit was used by the bank as security.
9. The claimant states that one Mr. Sunday Ojo an agent of the Defendant agreed to take the sum of N1,500,000.00 (One Million, Five Hundred Thousand Naira only) and to use the interest to service the loan and give the claimant the balance of the yield regularly.
10. The claimant states that, contrary to the agreement with the bank and prior to the maturity date and without prior information to her, the Defendant terminated the fixed deposit contract agreement on August, 2010 in breach of the fixed deposit contract agreement between the parties.
11. The claimant states that according to their agreement, the fixed deposit contract maturity date was supposed to be 24th February, 2011 but contrary to their agreement in August, 2010 and paid the money into her savings account without her notice.
13. The claimant states that when she discovered it was her fixed deposit she has being (sic: been) using the interest to take care of her children, she approached the Manager of the Defendant and her Accounting Officer, Mr. Sunday Ojo, they directed her to issue a withdrawal slip to revert the N1.8 million back to her fixed deposit used as security and she did.
18. The claimant states that she made inquiries and discovered that Sunday Ojo, the agent of the Defendant, had mismanaged her account and did not return the N1.8 million to the fixed deposit account and other discrepancies while acting in his official capacity, and she had no other relationship with the bank except through Sunday Ojo.
19. The Claimant States that Sunday Ojo was dismissed for numerous offences including the mismanagement of her account, but the Defendant has refused despite repeated demands to pay the claimant.”

It is clear to me from the facts pleaded, as reproduced above, that the said Sunday Ojo acted in the course of his duty as the accounts manager of the Respondent. He advised the Appellant to take the loan of N1.8 million, using her fixed deposit account as collateral. The act of the said Sunday Ojo as pleaded, breached the fiduciary duty the Respondent owed the Appellant as the said Sunday Ojo managed the accounts of the Appellant inconsistent with the terms and conditions of the loan agreement. This is evident in the averments of the Appellant in paragraphs 5, 6, 7 and 8 of the Reply to the Statement of Defence and Counter-Claim, which I endeavour to reproduce below:
“5. In reply to paragraph 4, the claimant states that she maintained current account, savings and investment accounts which were managed, controlled and supervised by the Defendant in carrying its banking functions.
6. The claimant further states that at the material time of her transaction with the Defendant, she carried out all her transactions deposition of N2 million in her fixed deposit with the Defendant through one Mr. Sunday Ojo her accounting officer who was an officer of the Defendant at the relevant time of the transaction.
7. The claimant states that paragraph 5 is false, that she made investment with the Defendant which she maintains from time to time, that on 24th February, 2009 she invested N2,000,000.00 with maturity date of 24th February, 2011. The investment document is already attained as Exhibit A and B and she did not at any time instruct the bank to stop the investment before the maturity date.
8. The claimant in reply to paragraph 6 of the statement of defence, the claimant maintains that the Defendant unilaterally terminated her fixed deposit account before its maturity date and transferred the sum of N2 million to her saving account without any notice and upon enquiry, the Defendant promised to correct the mistake by transferring the N2 million back into her fixed deposit account which they still failed to do up till now.”

Apart from the above stated averments, the Respondents in answer to the Statement of Claim, had pleaded in paragraphs 4, 5 and 6 of the Statement of Defence and Counter Claim as follows:
“4. In further answer to paragraph 6 of the Statement of Claim, the defendant avers that the Claimant Theresa I. Eke maintains savings account Number … and current Number … accounts in our business office, both accounts were opened on 20/04/2005 and 09/10/2007 respectively.
5. In answer to paragraphs 7, 8 and 9 of the Statement of Claim, the defendant avers that on 31/10/2007, Afribank cheque of 2,792,114.68 were paid into the claimant’s current account, out of this amount, the sum of N2,300,000.00 was moved to fixed deposit account on claimant’s instruction and was rolled over continuously and dropping into the account. However, on 8/2/2008 the total value was transferred to her saving account number … from where the whole sum was again moved to fixed deposit account and has been rolled over severally until 17/02/2009.
6. In answer to paragraph 10 of the Statement of Claim, the defendant avers that on 17/02/2009, the sum of N2,000,000.00 was transfer (sic) to fixed deposit account out of N2,152,955.13 that dropped into her account. It was rolled over every 90 days as contained in the Certificate of deposit.”

As stated earlier, the Appellant’s case is that based on the advice of Sunday Ojo, she took a loan of N1.8 million from the Respondent which she secured with her fixed deposit account. That, the maturity date of the fixed deposit account was the 24/2/2011 but the Respondent terminated same on the 23/8/2010 and transferred the sum of N2.00 million into her savings accounts without her consent or knowledge. That she was then misled into making withdrawals from the savings account believing that it was compensation and entitlement of her deceased husband. It is on that basis that, the Appellant sued the Respondent claiming general damages of N3 million for breach by the Respondent of the loan agreement.

Now, the decision of the learned trial judge was on the basis that, since fraud by Sunday Ojo was alleged by the Appellant, for the Appellant to succeed, he needed to have joined the said Sunday Ojo in the suit, and that such failure was fatal to the claim. Generally, in law, the purpose of joinder of persons, whether natural or artificial, to an action, is that such a person be bound by the outcome of the suit. The person to be joined must be one that has a stake in the subject matter of the suit or may be affected by the decision, such that the suit cannot be effectually and effectively settled unless such a person is made a party. See Green v. Green (1987) 3 NWLR (Pt. 61) 480, Peenok Investments Ltd. v. Hotel Presidential Ltd. (1982) SC and Ministry of Health & Ors v. Mobile Links Technologies ltd. (2020) LPELR – 51482 (CA).

It should be noted that, an agent who acts for a disclosed principal is not a necessary party since it is the principal and not the agent who is answerable for the acts and/omissions of the agent.

In the instant case, it is the case of the Appellant that, Sunday Ojo, an officer and therefore agent of the Respondent acted fraudulently and outside the scope of the contract between the Appellant and the Respondent. There is no doubt, that the Respondent was a disclosed principal and Sunday Ojo was its employee charged with managing the accounts of the Appellant. It is therefore the settled law that, a disclosed principal may sue or be sued for the acts of his agent or servant done within the actual or apparent authority of such servant. That is more so where there is nothing ex facie illegal or unlawful in the act of the agent or servant. See Stanbic IBTC Bank v. Longterm Global Capital Ltd. & Ors (2018) LPELR – 44053 (CA), Niger Progress Ltd. v. North-East Line Corporation (1989) LPELR- 1996 (SC) and Nwankwo & Anor. v. Okoli & Anor. (2018) LPELR – 44079 (CA). Thus, in Niger Progress Ltd. v. North East Line Corporation (Supra), the Supreme Court held that:
“A disclosed principal may sue or be sued on any contract made on his behalf and in respect of any money paid or received on his behalf by his agent acting within the scope of his actual authority.”

In the instant case, I find as pleaded, that the act of Sunday Ojo was done within the scope of his official duty as the accounts officer or accounts manager of the Appellant. He is said to have unilaterally transferred monies from the fixed deposit account of the Appellant to her savings account. There is no evidence on the record to show that he had no authority to do so, only that, he terminated the said fixed deposit account earlier than the date fixed. While the action of Sunday Ojo may be termed as unauthorized but it did not amount to fraud in the absence of any evidence that Sunday Ojo benefitted unlawfully from his action. I therefore find that, the learned trial Judge erred in holding that the non-joinder of Sunday Ojo was fatal to the Appellant’s claims. That is as, far as the claim against the Respondent is concerned.

I wish to also point out that there is no evidence on the record to show that Sunday Ojo defrauded the Appellant. In any case, I have found at the beginning of this judgment that, there is no vicarious liability in criminal law. Thus, if the issue is whether the trial Court rightly found that Sunday Ojo defrauded the Appellant, my decision will be that, the trial Court had no authority to make such pronouncement in the absence of Sunday Ojo. Apparently, the learned trial Judge had held in page 372 of the record of appeal that:
“It is not in doubt that Sunday Ojo defrauded the claimant. What is in doubt is as to whether the defendant instructed Sunday Ojo to defraud the claimant.”

It is therefore my view, which I hold, that in the absence of joinder of Sunday Ojo, that finding by the trial Court was in breach of the Fundamental right of Sunday Ojo as guaranteed by Section 36(1) of the 1999 Constitution.

I note also, that the Appellant devoted the entirety of Grounds 1 – 5 of the Notice of Appeal and by extension issues 1 – 4 on the issue of joinder or non-joinder of Sunday Ojo. There is however, no ground of appeal challenging the finding of the trial Court, that the Claimant/Appellant failed to prove her claim. Since there is no appeal against such finding, such finding remains valid and subsisting. Such finding is therefore binding on the Appellant. See Agbakoba v. INEC & Ors (2008) 18 NWLR (Pt. 1119) 489, Yusuf Jimoh v. Karimu Akande (2009) LPELR – 8087 (SC) and Wema Bank Plc. v. Arison Trading & Engineering Company Ltd. & Anor. (2015) LPELR-40030 (CA). Therefore, it remains established that the Appellant as claimant failed to prove her claim.

Now, on issue 5, learned counsel for the Appellant contended that, by the averments in the Counter-Claim, the Respondent agreed that, the fixed deposit account of N1.8 million naira was still running when the contract was terminated. That, there was no instruction of the Appellant for the Respondent to merge the fixed deposit account with the loan account. That, DW1 stated categorically that, such action by the Respondent was wrong in banking practice. The cases of Onisadu v. Elewuju (2006) 3 NWLR (Pt. 998) 529 and Salawu v. Yusuf & 2 Ors. (2007) 5 SC 35 at 40 were then cited to further submit that such amounts to an admission against interest. Furthermore, that the Respondent did not lead any evidence to show that the fixed deposit account had been discharged.

Learned counsel for the Appellant went on to submit that, while the Respondent filed a counter-claim and a Written Statement on oath, but that the said Written Statement on oath was abandoned and therefore no evidence was led in support of the counter-claim. That in the circumstances, the trial Court could not have granted the counter-claim as no evidence was led in proof thereof, because the Respondent failed to adopt the counter-claim by his written statement on oath. The case of Splinters (Nig.) Lt. v. Oasis Finance Ltd. (2013) 18 NWLR (Pt. 1385) 226 was cited in support.

The case of N.N.B. Plc. V. Denclag Ltd. (2005) 4 NWLR (Pt.916) 549 at 597 was then cited to submit that, pleadings do not amount to evidence. That in the circumstances, the statement of defence, and the counter-claim do not constitute any evidence before the Court. Furthermore, that where no evidence has been led in support of the pleadings, such pleading is deemed abandoned. That in the circumstances, there is no credible evidence upon which the trial Court could grant the counter-claim.

It was then contended that, the Respondent had averred that in January and February, 2010, the Appellant was indebted to her for about but the statement of account (Exhibit 10) show that there was no such record. That, the record of February, 2010 showed N23,142.35 and not N1,762,200.00 as alleged by the Respondent. That, the claim of the Appellant that the sum of N1.8 million was re-invested by the Appellant into her fixed deposit account after she complained about the unilateral termination of the fixed deposit account in February, 2020 has not been accounted for by the Respondent. The case of Union Bank of Nigeria Ltd. v. B. U. Umeh & Sons Ltd (1996) 1 NWLR (pt. 426) 565 was cited in support. That, if the trial Court had considered the circumstances, it would not have granted the counter-claim. It was then submitted that, the Respondent failed to account for the N1.8 million returned by the Appellant to the Respondent. We were also urged to hold that, the Respondent not having included her counter-claim in the Written Statement on Oath, is deemed to have abandoned the counter-claim, and to resolve this issue in favour of the Respondent.

In response, learned counsel for the Respondent contended that the learned trial Judge was right when he allowed the counter-claim. That, the Appellant had applied via Exhibit 10, for an overdraft facility of N1.8 million. That on the 2/3/2010, the Respondent offered the Appellant a cash collateral facility of N1.8 million as evidenced by Exhibits 9 and 11, and that the fixed deposit account of the Appellant was used as collateral. That a right of lien was also given to the Respondent. It was then contended that, while the cash collateral facility was still running and still unpaid, the Appellant went ahead to withdraw the sum of N1.8 million and N100,000.00 respectively from the fixed deposit account used as security for the loan thereby intentionally breaching the terms and conditions of the loan. That such withdrawals were admitted by the Appellant under cross-examination.

Learned counsel for the Respondent then submitted that, there is no evidence stronger than the documentary evidence; to wit: Exhibits D12, D13 and D14 and the admission of the Appellant (CW1) and CW2 under cross-examination. The cases of Adebayo v. A.G., Ogun State (2008) 7 NWLR (Pt. 1085) 201 at 221, Olanipekun v. State (2016) 13 NWLR (Pt. 1528) 100 at 124, Godsgift v. State (2016) 13 NWLR (Pt. 1530) 444 and Ogbeide v. Osula (2004) 12 NWLR (Pt. 886) 86 were cited in support. That in any case, the Appellant while testifying as CW1, admitted that, the Respondent was informing her on all the transactions. That it is true that the loan was in writing and that she gave her fixed deposit account as collateral for the loan. That the Appellant also admitted withdrawing from her fixed deposit account which was used as the collateral when same had not matured and the loan was unpaid. That, despite the avalanche of evidence, the Appellant did not produce any document to show that she had paid the loan with the accumulated interest; and that, rather, the Appellant was busy engaging in dribbling the Respondent with the aim of stopping the Respondent from recovering the loan. The cases of F.B.N. Plc. V. Nwadialu & Sons Ltd. (2016) 18 NWLR (Pt.1543) 1 at 38 – 39, Taiwo v. Adegboro (2011) All FWLR (Pt. 584) 52 at 67, Salawu v. Yusuf (2007) All FWLR (Pt. 384) 230; Al-Hassan v. Ishaku (2016) 10 NWLR (pt. 1520) 230, Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499 and Fidelity Bank Plc. v. Okwuowulu (2013) 6 NWLR (Pt. 1349) 197 were also cited in support.

Learned counsel for the Respondent then submitted that, the learned trial Judge was therefore right in granting the counter-claim as the Appellant is bound by the terms and conditions of the loan availed her by the Respondent. The cases of A.I.B. Ltd. v. I.D.S. Ltd. (2012) 17 NWLR (Pt. 1328) 1 at 50 and S.S. GMBH v. T. D. Ind. Ltd. (2010) 11 NWLR (Pt. 1206) 589 were cited in support. That, the Appellant who intentionally breached the contract by withdrawing from the fixed deposit account used as collateral for the loan when the loan was yet to be paid nor the maturity date reached, cannot seek the protection of the law. The cases of N.B.T.C Ltd. v. Narumal (Nig.) Ltd. (1986) 4 NWLR (Pt. 33) 117; Oilfield Supply Centre Ltd. v. Johnson (1987) 2 NWLR (Pt. 58) 625 and Balogun v. E.O.C.B. (Nig.) Ltd. (2007) 5 NWLR (Pt. 1028) 584 at 608 were then cited in urging us to resolve this issue against the Appellant.

In reply on point of law, learned counsel for the Appellant insisted that, the counter-claim was never proved as no evidence was led by the Respondent in prove of same. The case of Stanbic IBTC Bank Plc. v. LGC Ltd. (2018) 10 NWLR (Pt. 1626) 154 was then cited to further submit that, in the absence of such evidence, same can not be cured by any dexterity in cross-examination. That the argument of the Respondent is misleading, as it is the Respondent who was in breach of the loan agreement to fix the sum of N2 million only at the rate of 6.7% per annum effective from the 24/2/2009. That it is the Respondent who terminated the agreement unilaterally without recourse to the Appellant on 23/8/2010. We were therefore, urged to hold that the Respondent having failed to lead evidence in support of its counter-claim did not prove the counter-claim and to resolve this issue in favour of the Appellant.

Now, on the counter-claim, the trial Court merely held as follows:
“On the counter-claim, it is my view that parties are bound by their agreement. The claimant is bound by the agreement entered between her and the defendant. It is in the light of this that I hold that the defendant’s counter-claim succeeds.”

It would be seen that, the learned trial Judge did not demonstrate in the judgment how he came to the conclusion that the counter-claim succeeded. There was therefore, downright failure to evaluate the evidence adduced on the counter-claim of the Respondent. That notwithstanding, this Court has the power to evaluate such evidence by virtue of Section 15 of the Court of Appeal Act, 2004.

In the instant case, the Respondent had counter-claimed as follows:
(i) The sum of N950,260.34 representing the current debt balance on the claimant account number 1008096307 as at 12th April, 2013.

(D) 10% of the judgment sum from the dates of judgment to the date the debt is finally liquidated.
(iii) Interest at the rate of 22% and other agreeable rate contained in the offer letter to the claimant dated March 02, 2010 until the date of judgment.

In prove of the above stated claims, the Respondent had pleaded as follows:
2.(a) The Defendant avers that the Claimant applied for an overdraft of N1,800,000 via a letter dated 24th February, 2010 which is hereby pleaded and shall be relied upon at the trial in support of the Defendant’s claim.
(b) The Defendant avers that the Defendant approved the said overdraft facility of N1,800,000 with terms and condition precedent drew down (sic) by an offer letter dated 02 March, 2010. The said letter of offer for a short term loan dated 2nd March, 2010 is hereby pleaded and shall be relied upon at the trial.
(c) The Defendant avers that the claimant signed letter of right of set off dated the 1st March, 2010 to the Defendant consolidating all account of the claimant into one and authorized the Defendant to transfer any amount from one account to another or to amalgamate the balance of one account to another.
(d) The Defendant avers that, the Claimant by the letter of right of set off, authorized the Defendant to merge or amalgamate as the case may be at the Defendant’s discretion and without reference to the claimant, and no claim will arise against the Defendant for such action or steps. The said letter of right of set off is hereby pleaded and shall be relied upon during the trial.
(g) The Defendant avers that the claimant made cash withdrawals of the overdraft facility of N267,000.00 on cheque number 88402955, N458,000 vide cheque No. 88402954 and N1,000,000.00 vide cheque No. 88402953 respectively.
(h) The Defendant avers that while the cash collateral facility was running and yet unpaid, the claimant equally made withdrawals of the fixed deposit which was used as collateral for the overdraft. It is this practice of the withdrawals from both accounts that made the claimant’s indebtedness to rise to the tune of N1,762,200.00 excluding interest and other charges occurring on the claimant’s account.
(i) The Defendant avers that the claimant is indebted to the Defendant to the tune of N950,260.34 as contained in the attached statement of account of the claimant, marked FD, with current account no. 1008095307 in the name of Eke Theresa. Same is hereby pleaded and shall be relied upon at the trial.

The Respondent’s witness deposed to those facts in paragraphs 8, 9, 11, 12, 15, 16, 17 and 18 of the Witness Written Statement on Oath. The Application for the overdraft by the Appellant is in evidence Exhibit D10. The offer for the loan of N1.8 million is also in evidence as Exhibit D11 while cheques evidencing the withdrawals made by the Appellant are in evidence as Exhibits DA1, DA2 and DA3 respectively. The Appellant, rather than frontally answering to those specific averments, the Appellant prevaricated and tried to divert the attention of the trial Court from the real issues against her by contending that, it was the Respondent that breached the terms and conditions of the loan facility when it unilaterally transferred the money in the fixed deposit account into her savings account.

It is the law that specific averments in pleadings must be denied specifically otherwise, they will be deemed admitted. In other words, averments in the pleadings of a party which are not effectively denied, challenged or controverted by the pleadings of the other party who intends to dispute the facts averred, would be deemed to have been admitted. See Nwofor Pharm, Chem. & Gen. Ent. Ltd. v. Roche (Nig.) Ltd. (2006) All FWLR (Pt. 322) 1542, N.B.C. Plc. v. Olanrewaju (2007) 5 NWLR (Pt. 1027) 255 and Adewuji v. Odukwe (2005) 14 NWLR (Pt. 945) 473. Thus, in Owosho & Ors v. Dada (1984) NSCC 568, the Supreme Court per Aniagolu, JSC held that:
“…a fact is deemed to be admitted if it is neither specifically denied nor denied by implication, having regard to the other facts averred in the pleadings. Plaintiff’s averments of facts must be met by the defendant frontally and categorically. The rules of pleadings do not allow a defendant to be hedgy or evasive in his answers to the facts averred by the Plaintiff.”

In the instant case, the Appellant was certainly evasive in his answers to the specific averment in the Respondent’s pleadings in support of the counter-claim. Those crucial averments were not denied by the Appellant by her reply to the counter-claim. Indeed, the admissions of the Appellant under cross-examination, betrayed her attempt at denial when she stated at pages 321 – 322 of the record of appeal as follows:
“It is true that the defendant, U.B.A have been informing me on all the transactions.
It is true that the loan given to me by U.B.A was in written form. It is true that I gave something as collateral before I was given the loan. It was my fixed deposit I gave as collateral. I was not withdrawing my money personally from U.B.A. I followed the condition given to me by U.B.A. (the defendant). It is true that I withdrew N200,000.00 (Two Hundred Thousand Naira) from my fixed deposit account when the time had not matured. My husband’s gratuity was paid into my savings account… It is true that I am not an illiterate.”

With this, I am satisfied that the Respondent proved the counter-claim on the standard required of them by law and the Appellant led no acceptable evidence, either oral or documentary in rebuttal. This issue is therefore resolved against the Appellant.

Having resolved as above, it is clear that issues 1, 2, 3 and 4 are resolved in favour of the Appellant to the extent that Sunday Ojo was not a necessary party in the proceedings before the lower Court. However, issue 5 is resolved against the Appellant. This appeal therefore succeeds in part. The judgment of the Kogi State High Court delivered on the 28/2/2017 is affirmed in part.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The leading judgment of my learned brother, Haruna Simon Tsammani, JCA, which has just been rendered was made available to me in draft. I avow my concurrence with the reasoning and conclusion in the said leading judgment as they accord with my views on the issues thrust up for determination in the appeal.

Though issue numbers one, two, three and four were resolved in favour of the Appellant to the effect that the lower Court was wrong in holding that the non-joinder of the Appellant’s account officer was fatal to the Appellant’s claim, the resolution of the said issues in the Appellant’s favour is mere cold comfort and would not afford the Appellant any paregoric; this is because the Appellant did not appeal against the express finding of the lower Court that she failed to prove the reliefs she claimed. This finding not having been challenged on appeal, remains subsisting and binding and an appellate Court cannot interfere. See KOYA vs. UBA LTD (1997) 1 NWLR (PT 481) 251 at 266, UDOM vs. E. MICHELETTI & SONS LTD (1997) 8 NWLR (PT 516) 187 at 200 and ADAMU vs. ESONANJOR (2014) LPELR (41137) 1 at 29-30.

It is predicated on the foregoing and the more elaborate reasoning and conclusion articulated in the leading judgment that I equally allow the appeal in part and on the same terms set out in the leading judgment.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother, HARUNA SIMON TSAMMANI, JCA.

I equally agree with the reasoning and the conclusion of my learned brother that the appeal succeeds in part.

I too affirm in part the judgment of the Kogi State High Court delivered on the 28/2/2017.