UBA PLC v. ONOH
(2020)LCN/15616(CA)
In the Court of Appeal
(ENUGU JUDICIAL DIVISION)
On Wednesday, November 04, 2020
CA/E/394/2012
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
UNITED BANK FOR AFRICA PLC APPELANT(S)
And
EMEKA ERIC ONOH RESPONDENT(S)
RATIO:
THE EFFECT OF NON SERVICE AND PROPER NOTIFICATION OF THR OTHER PARTY
Service is fundamental to the exercise of jurisdiction. Where however, a party was found not to have been served or properly notified of the proceedings before the case was heard in their absence, such proceedings is a nullity and liable to be set aside, as the absent party would have been unjustly denied the opportunity to be heard. See EMEKA VS. OKOROAFOR & ORS (2017) LPELR-41738(SC), SKENCONSULT (NIG) LTD. VS UKEY (1981) 1 SC 6 and KIDA VS OGUNMOLA (2006) 6 SCNJ 165 at 174.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Enugu Judicial Division, Holden at Enugu delivered on the 30th May, 2012 by AGISHI, J.
The Respondent was a security staff attached to the 9th Mile, Enugu branch of the Appellant. He was fingered as a suspect in a fraud attempt on the Appellant upon which the Appellant made a formal report to the Economic and Financial Crimes Commission, hereinafter referred to as the EFCC, to investigate the said crime. The Respondent was then arrested and handed over to the said EFCC and aggrieved by his experience, the Respondent took out an action at the trial Court for the enforcement of his fundamental rights. The reliefs sought by the Respondent in the said action are as follows:
(A) A declaration that the torture and detention of the Applicant by the staff of UBA PLC, 10 Station Road Enugu on the instructions of Mr. Eugene on 11th June, 2009 on allegation of “planning fraud” constitutes an abuse of the Applicant’s fundamental rights.
(B) A further declaration that stripping the Applicant naked and flying him to Lagos, in bare pants for further torturing by the Economic and Financial Crimes Commission on the further instruction of Mr. Ayo Ajala (head banking fraud) EFCC also amount to flagrant abuse of the Applicant Account.
(C) A further declaration that the freezing of the Applicant’s Account No 0521050013649 and 0521050026802 at Diamond Bank by the EFCC and seizure of his handsets and cash total of N85,000 (Eighty five thousand Naira) by the UBA further amounts to an abuse of his fundamental right.
(D) A further declaration that the arrest torture, detention of the Applicant on the aggregate of 45 days highly infringed on his right to personal liberty.
(E) An order of the Court for the opening forthwith of the Applicants accounts frozen by the respondents.
(F) N10BN (ten billion Naira) as aggravated damages for the physical torture, loss of earnings from frozen account and general abuse of the Applicants by the respondents to the Applicants jointly and severally.
And for such further order(s) as the Honourable Court may deem fit and proper to make in the circumstances.
The action was contested by the Appellant through its counter-affidavit and arguments while the other Respondents at trial did not avail themselves of the opportunities granted them. After taking arguments from the respective counsel, the learned trial Judge delivered a considered judgment in favour of the Respondent.
Dissatisfied, the Appellant invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on the 15th June, 2012 containing three grounds.
At the hearing of the appeal, Mr. Nnamani of counsel for the Appellant adopted the Appellant’s brief filed on the 14th January, 2013 but deemed properly filed and served on the 14th October, 2020 as the arguments of the Appellant in furtherance of this appeal. For the Respondent, Mr. Agu holding the brief of Mr. Awforkansi, adopted his brief filed on the 21st May, 2019 but deemed properly filed and served on the 14th October, 2020 as the arguments of the Respondent in contesting the appeal.
The Appellant distilled two issues for determination thus:
i. Was the trial Judge right in holding the Appellant (2nd Respondent in the lower Court) liable for acts of abuse of human rights found against the Nigeria Police and EFCC, who were invited by the Appellant to perform their constitutional duties of investigating perceived attempted fraud and prosecuting the culprit. (Ground 1).
ii. Whether the acts of brutalization and breach of fundamental rights found against UBA manager and EFCC were attributable to the Appellant.
The two issues of the Appellant were adopted by the Respondent who however formulated a third in addition as follows:
Whether the lower Federal High Court was right in holding that “the Applicant has proved the violation or infraction of his fundamental rights to entitle him to compensation as enshrined in S.35(6) of the 1999 Constitution as amended”.
A consideration of the two mutually agreed issues and the third one formulated by the Respondent shows that semantics apart, the issues are essentially addressing the same subject-matter. I shall therefore take all the issues together.
It was submitted for the Appellant that having reported the attempted fraud on it to the law enforcement agencies who had a duty to investigate, the Appellant could not be held liable for the activities of the law enforcement agencies. Learned counsel submitted further that allegations of infractions of right were made by the Respondent against the police who were not made parties to the action which omission rendered the action fatally flawed. He referred toFAJEMIROKUN VS COMMERCIAL BANK (NIG) LTD VS ANOR (2009) 21 WRN 1 at 10.
It was submitted that the Appellant could not be held liable for the alleged infractions of the 3rd Respondent at trial who was no longer in its employment and which said infractions were never established. He referred to Section 1054 (1) of the Contract Law, Laws of Enugu State (Cap 26) 2004.
Learned counsel submitted that the failure to serve the 3rd Respondent at trial denied him of fair hearing and rendered the judgment entered against him null and void. He referred to FIRST BANK OF NIGERIA PLC VS ONUKWUGHA (2005) 16 NWLR (PT 950) 120 at 150.
Finally, learned counsel submitted that the alleged infractions against its said staff were not of a nature that could be said to be within the scope of duties of the said staff and for which it could be held vicariously liable. He referred to IYERE VS BENDEL FEED & FLOUR MILL LTD (2009) 3 WRN 139 at 164. The contrary arguments of the Respondent was that the trial Court was right in finding the Appellant liable as based on the unchallenged affidavit evidence, the staff of the Appellant who acted for it went beyond merely reporting a crime and acted malafide. He referred to FAJEMIROKUN VS COMMERCIAL BANK (NIG) LTD VS ANOR (supra).
It was further submitted that from the affidavit evidence, the alleged infractions attributed to the police emanated from the direct instructions of the staff of the Appellant and that as such the non-inclusion of the police was not fatal to the case. Learned counsel referred to SEA TRUCKS (NIGERIA) LTD VS ANIGBORO (2001) LPELR 3025(SC).
It was contended for the Respondent that the 3rd Respondent at trial acted for the Appellant in the course of his duties and that the Appellant cannot escape from being held vicariously liable.
It was argued that the issue of service was resolved by the statement of the learned trial Judge in the judgment to the effect that the counter-affidavit filed was on behalf of the 2nd and 3rd Respondents at trial.
Finally, it was submitted for the Respondent that the judgment of the trial Court was based on sound reasoning in line with the adduced facts thereby meeting the justice of the case.
The Appellant herein being a corporate entity carries out its activities through its human agents and staff and where there are allegations of infractions of human rights against it, its liability is vicarious based on the acts of its agents and staff. This implies that the evidence establishing the liability of the Appellant therefore must be of the conduct of its said agents and staff. See IFEANYI CHUKWU (OSONDU) CO. LTD V. SOLEH BONEH (NIG) LTD (2000) LPELR-1432(SC).
In the case at hand, the staff of the Appellant involved was the 3rd Respondent at trial. The evidence before the trial Court was that he was not served with the processes in the action. This anomaly was said by the Respondent’s counsel, to have been cured by the observation of the learned trial Judge in the judgment on appeal as contained on page 136 of the record of appeal thus:
In opposition to the application, 2nd and 3rd respondents have filed a counter affidavit of 14 paragraphs sworn to by one Uzoma Onyiriuka a staff in the employ of the 2nd respondent.
The counter-affidavit referred to by the learned trial Judge can be found on pages 76-77 of the record of appeal. Paragraphs 1-3, and 13 of the said affidavit are of relevance and they contain thus:
1. I am employed by the 2nd respondent as the Head of Investigation, East & South Bank with office at Enugu.
2. I have read the affidavit of the applicant in support of this application for enforcement of his fundamental right.
3. I have the authority of the 2nd respondent to depose to this affidavit on its behalf.
13. The 2nd respondent had no hand in the exercise by either the police or the violation of their constitutional powers or in any way influenced any alleged violation of the applicant’s fundamental rights.
The first point here is that there is no part of the counter-affidavit in question where it was suggested or implied that the said counter-affidavit was on behalf of the 3rd Respondent. The extension of the said counter-affidavit to the 3rd Respondent was therefore without any basis. This then makes it obvious that the 3rd Respondent at trial against whom copious and grievous allegations were made was not served and given necessary opportunity to respond before judgment was entered by the trial Court.
The primary question to be answered before holding a master vicariously liable for the actions of his servant is whether the servant was liable. That question cannot however be answered where the servant who was made a party to the action was not served and given the necessary opportunity to respond.
Service is fundamental to the exercise of jurisdiction. Where however, a party was found not to have been served or properly notified of the proceedings before the case was heard in their absence, such proceedings is a nullity and liable to be set aside, as the absent party would have been unjustly denied the opportunity to be heard. See EMEKA VS. OKOROAFOR & ORS (2017) LPELR-41738(SC), SKENCONSULT (NIG) LTD. VS UKEY (1981) 1 SC 6 and KIDA VS OGUNMOLA (2006) 6 SCNJ 165 at 174.
The report made to the law enforcement agencies by the Appellant fell within the scope of its ordinary duties as a citizen. See FAJEMIROKUN VS COMMERCIAL BANK (NIG) LTD VS ANOR (supra).
However, the allegations forming the basis of the allegations of malafide to ground the action of the Respondent against the Appellant were attributable to the 3rd Respondent. Having failed to grant the 3rd Respondent the opportunity to place his side of the story before the Court, the learned trial Judge failed to create a justifiable basis to infer the liability of the Appellant.
In the circumstances therefore, I find merit in this appeal on this point and I hereby allow it. The judgment of the trial Court is accordingly set aside. Suit is remitted to the Federal High Court for re-hearing.
Parties shall bear their respective costs.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read in draft the lead judgment of my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. I agree with his reasoning and conclusion that the appeal has merit and is hereby allowed. I abide by the consequential orders made therein.
ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. just delivered. I am in agreement with the decision reached and the reasoning behind the decision.
For the detailed reasons adumbrated in the lead judgment, I too, hold that the appeal is meritorious and same is hereby allowed. I abide by the order as to cost made in the lead judgment.
Appearances:
Mr. P. O. Nnamani For Appellant(s)
Mr. S. O. Agu For Respondent(s)