ZENITH BANK v. WAILI (2022)

ZENITH BANK v. WAILI

(2022)LCN/16668(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, April 07, 2022

CA/A/964/2020

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

ZENITH BANK PLC APPELANT(S)

And

YUSUF WAILI RESPONDENT(S)

RATIO

WHETHER OR NOT FACTS PLEADED NEEDS TO BE PROVED

Indeed, in law fact admitted needs no further proof and admission is, perhaps the best form of proof of a fact. See Section 123 of the Evidence Act 2011, which provides thus:
“No fact needs to be proved in any civil proceeding which the parties to the proceedings or their agents agree to admit at the hearing, or which before the hearing they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings.”
See also U.D.F.U v. Kraus (2001) 24 WRIN 78 AT p. 91, where it was held firmly inter alia thus:
“The law is unequivocal that a fact admitted by the Defendant in his pleading must be taken by a Court of law as established and should therefore be treated as one of the agreed facts between the parties to the suit. Indeed, these facts are directly admitted as in the instant case or deemed admitted as provided for in the Rules of Court dealing with pleadings, such averments do not need to be processed in Court… The judgement of the Court delivered on 17/2/97 based on the admission cannot be faulted.”
See further Solana V. Olusanya & Ors (1975) 6 SC 55; Olubode V. Oyesina & Ors (1977) 5 SC 79; UNIC Insurance Plc V. Fadayi (2018) LPELR-45571 (CA); Ekpemupolo V. Edremoda (2009) 8 NWLR (Pt. 1142) 166. PER GEORGEWILL, J.C.A.

WHETHER OR NOT THE TRIAL COURT IS BOUND TO OBEY ITS RULES

The lower Court was and is still bound to obey its Rules except where such rule runs contrary to constitutional or other provisions of the law and or tends to hinder and or hamper the doing of justice to parties before it. Indeed, Rules of Court are not made for the fun of it and to be toyed with but rather they are handmaids geared towards the attainment of justice. Thus, so long as a rule of Court is neither inconsistent with the Constitution nor hinders the due administration of justice it must be obeyed and therefore, its obedience by the lower Court cannot form the basis of any genuine and plausible complaint against the lower Court. The Courts as well as the parties are bound by the Rules of Court. They cannot simply or merely wish the Rules of Court away or ignored. See Nnachi V. Onuorah & Anor (2011) LPELR-4626 (CA) AT pp. 16-17, where this Court per Garba JCA (as he then was but now JSC) had stated inter alia thus:
“The law is settled that the Rules of Court binds both the Court and especially the parties in the preparation of processes to be filed in the Court. The Rules of Court are not intended or made merely to adorn the pages on which they were printed and to decorate the shelves or libraries of the Court, but meant to be complied with since it regulates the practice and procedure in the exercise of the Court’s powers and jurisdiction over matters that come before them. Because our Courts are Courts of law, their powers and jurisdiction conferred by the law should or must be exercised in compliance or adherence with the rules of practice and procedure pursuant to the law. The primary duty of the Court is to do justice in cases that come before them, in accordance with the Rules of the Court provided to guide the procedure for the attainment of such justice which is to be justice according to the law applied to the peculiarities of a given case.” PER GEORGEWILL, J.C.A.

THE POSITION OF LAW WHERE PLEADINGS DO NOT RAISE SERIOUS TRIABLE ISSUES

In Darlvis Investment Ltd V. Hallmark Bank Plc (2009) LPELR-8415(CA), this Court had held inter alia thus:
“The law is also trite that where in pleading or otherwise admission of fact is made, any party to the action may apply to Court for such judgment or an order to be entered or made thereupon without necessarily waiting for the determination of the remaining issues between the parties. The Court in the circumstances has the power to give such judgment or make such order it deems expedient.” See also Unity Bank Plc V. Denclag & Anor (2012) 1 – 3 SC 77 AT pp. 98 – 99, where the Supreme Court had reiterated inert alia thus:
“Where pleadings do not raise serious triable issues, the Court is entitled to draw necessary conclusions from the pleadings and proceed to enter judgement for the party in appropriate cases.” PER GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja Coram: A. S. Adepoju J, in suit No. FCT/HC/CV/3034/2019: Yusuf Waili V. Zenith Bank Plc, delivered on 28/9/2020, in which some of the claims of the Respondent as Claimant were granted against the Appellant as Defendant.

The Notice of Appeal was filed on 28/10/2021 on four grounds of appeal. See pages 79 – 72 of the Record of Appeal. The Record of Appeal was duly compiled and transmitted to this Court on 12/11/2021. The Parties filed and exchange their briefs, which were adopted as their arguments at the hearing of this appeal on 1/3/2022. Whilst the Appellant was represented by Samson Esekhaigbe Esq, the Respondent was represented by Obi C. Nwakor Esq.

By a Writ of Summons filed on 23/9/2019 before the Lower Court, the Respondent as Claimant claimed against the Appellant as Defendant for the following reliefs, to wit:
1. A Declaration that the suspension and freezing of the Claimant’s account No. 2004272706 without due process of law and for no reason known to law is reprehensive, cruel and an abuse of the due process of law.
2. The sum of N100,000,000.00 as General damages for the act of the Defendant in suspending, freezing and locking out the Claimant from the use of his salary account No. 2004272706 from January 2019 – May 2019.
3. A letter of apology from the Defendant to the Claimant. See pages 2 – 5 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
The gist of the case of the Respondent as Claimant before the lower Court, as can be gleaned from the averments in his pleadings as well the affidavit evidence relied upon as in the Record of Appeal, inter alia was that the Respondent maintains account No. 2004272706 with the Appellant as his salary account. However, between January 2019 – May 2019, while the account was being funded by his employer paying his salary into the said account, the Appellant froze and suspended the account for no reason known to law and the Respondent was not able to receive or access his salary and thereby suffered losses and damages on account of the unjustifiable action of the Appellant. It later took the Respondent’s Solicitor’s letter to the Appellant to cause them to reopen the Respondent’s account to enable him have access to his funds therein.

On the other hand, the gist of the case of the Appellant as Defendant before the lower Court, as can be gleaned from the averments in its pleadings as well as the affidavit evidence relied upon as in the Record of Appeal, inter alia was that the Appellant acting on caution and caveat on the instruction of the Economic and Financial Crimes Commission had frozen the operation of the Respondent’s account with the Appellant and duly informed him through his account officer to get in touch with the EFCC to resolve whatever issues he had with them. However, after about five months without any further steps taken by the EFCC, the Appellant duly allowed the Respondent to operate his said account. Surprisingly, after operating the said account for several months the Respondent sued the Appellant before the lower Court claiming damages, which the Appellant stoutly denies having acted on the instruction of the EFCC, being a law enforcement agency involved in the investigation and detection of financial crimes.

At the close of pleadings, the Respondent filed a Motion on Notice seeking an Order of the lower Court entering judgment against the Appellant on the basis of the averments in the pleadings of the Appellant, which the Respondent believed amounted to admission by the Appellant of the Respondent’s claims against it. The parties filed and exchanged affidavit evidence and written addresses on the Respondent’s Motion on Notice, which were duly adopted by them and on 28/9/2020, the lower Court delivered its ruling entering judgment and granted some of the claims of the Respondent against the Appellant, while dismissing the Respondent’s claim for the cost of the litigation, hence this appeal. See pages 39 – 45, 48 – 59, 63 – 68 and 69 – 72 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, two issues were distilled as arising for determination from the four grounds of appeal, namely:
1. Whether the Appellant was accorded fair hearing by the lower Court when it was disallowed from calling its witnesses to adduce and tender evidence in support of its defense?
2. Whether this instant suit is on all four with the decided case of GTB Plc V. Adedamola (2019) 5 NWLR (Pt. 1664) 30 which the lower Court relied on in arriving at its decision?

In the Respondent’s brief, two issues were distilled as arising for determination in this appeal, namely:
1. Whether the lower Court was right to give judgment on admissions in the pleadings of the Appellant, and if yes, whether it amounts to denial of Appellants right to fair hearing?
2. Whether the lower Court would not be bound by the decision of a higher Court on same issue?

I have taken time to consider the averments in the pleadings of the parties, particularly as to the issues joined therein as in the Record of Appeal. I have also considered the affidavit evidence of the parties on the Respondent’s Motion on Notice for judgment. I have further reviewed and considered the submissions of learned counsel to the parties in their respective briefs in the light of the findings and decisions reached in the judgment of the lower Court. I am of the firm view that the apt issues arising for determination in this appeal are the two issues as distilled in the Respondent’s brief, a consideration of which, in my view, would invariably involve a consideration of the two issues as distilled in the brief. The two issues as distilled in the Respondent’s brief are concise and precise and covers the two issues distilled in the Appellant’s brief. However, I shall consider both issues together and resolve them in one fell swoop.

ISSUE ONE AND TWO TAKEN TOGETHER
Whether the lower Court was right to give judgment on admissions in the pleadings of the Appellant, and if yes, whether it amounts to denial of Appellants right to fair hearing AND whether the lower Court would not be bound by the decision of a higher Court on same issue?

APPELLANT’S COUNSEL SUBMISSIONS
In his submissions on his issue one, which I have taken time to review, learned counsel for the Appellant had submitted inter alia that whilst fair hearing is a cardinal principle of adjudication and its denial touches the root of justice, the rules of Court is a vehicle for the smooth administration of justice not intended to clog the wheels of justice and contended that in law it is the primary responsibility of Courts to hear the parties and not to shut them out casually and urged the Court to hold that the lower Court by the procedure it adopted by refusing to consider the defense of the Appellant on the merit and the resultant judgment it entered against the Appellant is a breach of the Appellant’s right to fair hearing failed in its role as an impartial arbiter and to allow the appeal and set aside the judgment of the Lower Court. Counsel relied on Nneji V. Chukwu (1988) 3 NWLR (Pt. 81) 184; Abubakar V. Yar’Adua (2008) 4 NWLR (Pt. 1078) 465 AT p. 601; Abubakar V. Nasamu (No. 2) (2012) 17 NWLR (Pt. 1330) 523 AT p. 549.

It was also submitted that the procedure adopted by the lower Court in error gave precedence to its rules of practice over the sacrosanct principle of fair hearing as well as the provisions of the Constitution of the Federal Republic Nigeria 1999 (as amended) and contended that the lower Court was wrong when it overlooked the submission of the Appellant and held that the Respondent has proved his case without the calling or taking of evidence by parties even where the Appellant had sought to elicit additional explanations and urged the Court to hold that it was erroneous for the lower Court to opt for speed rather than considering the merit of the cases of the parties and arriving at a perverse judgment and to allow the appeal and set aside the perverse judgment of the lower Court. Counsel relied on Ujeh Egun V. Martin Osian (1978) 6 FCA 1; Imasuen V. University of Benin (2010) 3 NWLR (Pt. 1182) 591 AT p. 616.

It was further submitted that the averments relied upon as admissions should not have been given any weight by the lower Court in view of the explanations to the contrary which the Appellant would have given had it been afforded the opportunity to support its pleadings with evidence by subpoena on the EFCC to justify its order pursuant to which the Appellant had acted and contended that by the procedure adopted by the lower Court in error, it denied the Appellant the opportunity to substantiate its defense and thereby breached the right of the Appellant to be fairly heard and urged the Court to so hold and to allow the appeal and set aside the resultant null judgment of the lower Court. Counsel relied on CAPPA & D’ Alberto Ltd V. Akintilo (2003) 4 SC (Pt. 11) p. 9; Union Bank of Nig. Ltd V. Prof. A. O. Ozigi (1994) 3 NWLR (Pt. 333) 385; Akintola V. Oluwa (1962) 1 All NLR 224; Nwaga V. Reg. Trustees Recreation Club (2004) FWLR (Pt. 190) 1360; Olubodun V. Lawal (2008) 17 NWLR (Pt. 1115) 1; Michael V. Access Bank Plc (2017) 12 WRN 46; Salami V. UBN Plc (2011) 8 WRN 130.

In his submissions on his issue two, which I have taken time to review, learned counsel for the Appellant had submitted inter alia that the decision in GTB V. Adedamola (2019) 5 NWLR (Pt. 1064) 30 was not applicable to the fact of the instant case contrary to the wholesale reliance on same by the lower Court in arriving at its perverse judgment against the Appellant and contended that while in that decision all the necessary parties were present and gave evidence in support of their pleadings, in the instant case the EFCC, which was a necessary party was not present in the case and even the application by the Appellant to join the EFCC was refused by the lower Court and urged the Court to hold that apart from the only similarity of both cases dealing with freezing of an account by a Bank, all other factors, including even the mode of commencement of the actions were different and thus making the wholesale reliance on the said decision by the lower Court erroneous and to allow the appeal and set aside the perverse judgment of the lower Court.

It was also submitted that in law for an admission to have probative value it must clearly, precisely and unequivocally express the admitting mind of the person and contended that an admission which is merely rhetorical, lacking exactness and firmness of purpose does not qualify as an admission and urged the Court to hold that contrary to the perverse finding of the lower Court there were no such positive admissions in the pleadings of the Appellant capable of grounding a judgment against the Appellant in favor of the Respondent since pleadings do not constitute evidence and to allow the appeal and set aside the perverse judgment of the lower Court. Counsel relied on Coker V. Olukoga (1994) 2 NWLR (Pt. 329) 648 AT p. 662; Onwuanumkpe V. Onwuanumkpe (1993) 8 NWLR (Pt 310) 186 AT p., Nwankwo V. Nwankwo (1995) 5 NWLR (Pt. 394) 153 AT p. 171; Orient Bank (Nig) Plc V. Bilante Intl. Ltd (1997) 8 NWLR (Pt 515) 37 AT pp. 90 – 95; Kenlink Holdings Ltd & Anor V. R.E. Invest. Ltd & Anor. (1997)11 NWLR (Pt 529) 438 AT p. 449; Okafor V. Dumes (Nig) Ltd (1998) 13 NWLR (Pt 580) p. 95.

RESPONDENT’S COUNSEL SUBMISSIONS
In his submissions on issue one, which I have taken time to review, learned counsel for the Respondent had submitted inter alia that looking at the averments in the Statement of Claim of the Respondent and the responses in the averments in the Statement of Defence of the Appellant, it is clear that all that the Appellant stated as its defense amounted to an admission that it indeed suspended the operation of the salary account of the Respondent merely acting on the instruction of the EFCC requesting the Appellant to place a caution on the said account vide a letter dated 31/12/2018 and contended that in law, this excuse was not only indefensible and unreasonable but was always unlawful coupled with the further admission by the Appellant that it decided on its own, whilst the letter of 31/12/2018 had not been withdrawn by the EFCC, to reopen the Respondent’s account placed under restriction by the EFCC at the end of the term of political office holders in 2019 without further directive from the EFCC and urged the Court to hold that the entire defense of the Appellant taken together amounted to nothing but a direct and unequivocal admission by the Appellant that it suspended the operation of the Respondent’s account simply on the directive of the EFCC, which in the absence of any Court order to that effect in law no defense at all and to dismiss the appeal for lacking in merit and affirm the correct and sound judgment of the lower Court. Counsel referred to Order 20 Rule 4 of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2018; Section 123 of the Evidence Act 2011, and relied on Nnachi V. Onuorah & Anor (2011) LPELR-4626 (CA) AT pp. 16 -17; Bakare V. Apena (1986) 6 SC 467 AT p. 468; Darlvis Investment Ltd V. Hallmark Bank Plc (2009) LPELR-8415(CA); Unity Bank Plc V. Denclag & Anor (2012) 1 -3 SC 77 AT pp. 98 – 99; U.D.F.U V. Kraus (2001) 24 WRN 78 AT p. 91; UNIC Insurance Plc V. Fadayi (2018) LPELR – 45571 (CA); Ekpemupolo V. Edremoda (2009) 8 NWLR (Pt. 1142) 166.

It was also submitted that the Appellant having admitted the essential facts on which the Respondent grounded his case, the Respondent need not engage in any other proof of his claim since in law admission is the best proof of facts and contended that the lower Court was in the circumstances right and acted perfectly within the ambit of the law in entering to judgment on the application of the Respondent vides his application which was strenuously and vehemently opposed by the Appellant and both parties were duly heard by the lower Court before reaching its decision to enter judgment for the Respondent against the Appellant based on its admission and absence of any defense to the claims of the Respondent and urged the Court to hold that in the circumstances in which both parties were duly heard on the Respondent’s application for judgment, the lower Court did not in any way or manner breached the Appellant’s right to fair hearing merely because the decision went against it and to dismiss the appeal for lacking in merit and affirm the correct judgment of the lower Court. Counsel referred to Order 23 Rule 2 of the High Court of the FCT Abuja (Civil Procedure) Rules 2018, and relied on NNPC V. Samfadek & Sons Ltd (2018) 2 – 3 SC (Pt. 1) 32. See also Akanbi V. Alao (1989) 5 SC 1.

In his submissions on issue two, which I have taken time to review, learned counsel for the Respondent had submitted inter alia that the lower Court was perfectly right when it relied on the binding decision in G.T. Bank Plc V. Adedamola (2019) 5 NWLR (Pt. 1664) 30, which was apt and applicable on both the facts and the principles of law enunciated therein and contended the lower Court was also right when it held that the relationship between the Respondent and the Appellant was that of a Banker/Customer and thus contractual in nature, a breach of which may lead to damages as it is the duty of the Appellant, the Bank to exercise reasonable care and skill in dealing with the account of the Respondent, its Customer and urged the Court to so hold and dismiss the appeal for lacking in merit and affirm the sound and correct judgment of the lower Court. Counsel relied on Agbanelo V. UBN (2000) 4 SC (Pt. 1) 233 AT p. 24; Atolagbe & Anor V Awuni & Ors (1997) 9 NWLR (Pt. 552) 536; Mekwunye V. Lotus Capital Ltd & Ors (2018) LPELR-45546 (CA) per Tijani Abubakar JCA, (as he then was but now JSC).

RESOLUTION OF ISSUES ONE AND TWO
My lords, the Respondent as Claimant had initiated an action against the Appellant as Defendant by means of a Writ of Summons filed on 23/9/2019. The Respondent also filed his Statement of Claim and his written Statement of Oath. Upon service, the Appellant filed its Statement of Defense and its witness Statement on Oath deposed to by one Remigius Ugwu.

Now, because the decision in this appeal, one way or the other, would depend entirely on the pleadings of the parties and the position of the law in relation to admissions and judgment entered in limine, I shall take the liberty to reproduce some of the crucial pleadings of the parties as in the Record of Appeal for the purpose of clarity and focused analysis in this judgment.

In the Respondent’s Statement of Claim, it was averred inter alia thus:
4. The said account No 2004272706 is the salary account, the account into which his salary was paid by his employers – Niger State Government.
7. The Claimant avers that on at about 4/1/2019 after his last transfer of the sum of N10,000.00 to one Ahmed Umar the Defendant stopped him from any further transactions/transfers of money from the said account suspended and froze the account.
8. That every attempt to transfer money from the said account was declined with a feed – back that the account is suspended with no reason for the suspension.
9. That as a result of the suspension of the account by the Defendant, the Claimant was unable to have access to the funds in the said account – his salary and was unable to meet pressing issues that required funds including feeding his family, paying the school fees of his children, electricity and water bill, fueling his cars, taking care of his aged parents and dependents and the provision of necessities for his family.
10. That despite the suspension of the account of the Claimant and preventing him from taking money out of the account, the Defendant continued to receive his salaries into the account for the months of January to May 2019 from the Niger State Government.
19. The Claimant avers that on or about 13/6/2019, he tried to operate the account and discovered that the account had been unfrozen, when he successfully transferred the sum of N50,000.00 to his wife’s account.
21. The Claimant avers that the conduct of the Defendant as enumerated above without due process of law constitutes a breach of contract, abuse of the rule of law and high handedness. See pages 2- 5 of the Record of Appeal.

In response, in the Appellant’s Statement of Defence it was averred inter alia thus:
5. The Defendant received a letter dated 31/12/2018 from the EFCC in respect of investigation activities concerning the Plaintiff and his account No. 2004272705 maintained with the Defendant.
6. The Defendant avers that in the said letter the EFCC requested the Defendant to place a caution on the Plaintiff’s account pending the conclusion of its investigation into the account. The said letter is hereby pleaded and same shall be relied upon at the trial.
7. Further to the preceding paragraph the Defendant avers that the letter from the EFCC allowed it very little room as it mandated it to perform a statutorily imposed duty.
8. The Defendant avers that it was constrained to comply with the directives of the EFCC to forestall administrative and against it.
17. The Defendant vehemently denies paragraphs 14, 15, 16, 17 and 18 of the Statement of Claim and in response avers that upon receipt of the caution notice from the EFCC, the Claimant’s account officer discreetly informed him of the ongoing investigation and encourage him to reach out to the Commission to determine the issues at stake and the way forward for him.
19. The Defendant in response to paragraph 19 of the Statement of Claim avers that at the end of the tenure of political officer holders in 2019 it decided on its own discretion to reopen the several accounts placed under restriction by the EFCC except those wherein it received further directives from the Commission.
20. The defendant in specific response to paragraph 20 of the plaintiff’s statement of claim states that it acted professionally pursuant to a lawful directive from the EFCC.
22. The Defendant as a responsible Corporate Citizen is duty bound to obey the laws of the land and all lawful directives by Organs of the Government. See pages 20 – 32 of the Record of Appeal.

It was on the above state of the pleadings of the parties that the Respondent had on 10/2/2020, filed a Motion on Notice pursuant to Order 15(5) (1) & (2) and (7) (2) and Order 23(2) (1) (2) (3) of the High Court of the FCT (Civil Procedure) Rules 2018, praying for the following reliefs, to wit:
1. An Order of Court entering final judgment for the Claimant on his Statement of Claim and on the admissions contained in the Defendant’s pleadings, and or
2. An Order of Court determining/disposing the issues of law raised in the Claimant’s pleadings and upon the determination/disposal of such issues of law enter a final judgment for the Claimant.

The Respondent raised the following issues of law for the determination of the lower Court, namely:
a. Whether the Defendant can in the absence of a Court Order and acting only on the instruction of the EFCC freeze and suspend the Claimant’s account No. 2004272706 in the Defendants’ Bank?
b. Whether the freezing and or suspension of the Claimant’s account No. 2004272706 in the Defendants’ bank without due process of law to wit – a Court Order is not reprehensible, cruel and an abuse of due process of law and equally a breach of contract of Banker/Customer relationship?
c. If the answer to the above issues are answered against the Defendant, whether the Claimant is not entitled to damages high enough to be exemplary. See pages 48 – 49 of the Record of Appeal.

In the Affidavit in support of the Respondent’s Motion on Notice deposed to by one Nwafor N. Charles, it was stated inter alia that by paragraphs 6, 8, 19, 13 and 25 of the Appellant’s Statement of Defense it admitted that in freezing and or suspending the account of the Respondent, the Appellant acted only on the instruction of the EFCC and that in the absence of any Order of Court authorising the Appellant to act as it did, the decision of the lower Court on these issues of law and or on the admissions of the Appellant will substantially dispose of the case without the need for plenary trial. See page 50 of the Record of Appeal.

In opposition to the application by the Respondent for judgment, on 17/2/2020 the Appellant filed its Counter – Affidavit deposed to by one Austin Akechi, stating inter alia that the Appellant has not admitted to any wrong doing against the Respondent and that the Appellant acted most professionally in its relationship with the Respondent. It was also stated that the Appellant operates in an industry that is tightly regulated and at all times it acts with the highest degree of professionalism and was at no time negligent in its relationship with the Respondent. It was further stated that the Appellant has a compelling defense that cannot be waived aside and that the Respondent’s case cannot effectively be disposed of without granting the Appellant an opportunity to lead evidence in its defense. See pages 39 – 40 of the Record of Appeal.

Now, it was on the above state of pleadings, affidavit and counter-affidavit evidence of the parties that the lower Court had after hearing the parties proceeded to enter final judgment on 28/9/2020 in favor of the Respondent against the Appellant, holding inter alia as follows:
“I… wish to state that the issues formulated by the learned counsel for the Claimant, without much sweat can only be resolved in favor of the Claimant based on the recent decision of the Court of Appeal in the case of G.T.B. Plc V. Adedamola (2019) 3 NWLR Pt. 1664 30 AT p. 34… It is therefore an unpardonable excuse for a banker to state that it acted based on an instruction of prosecuting agency while placing restrictions on a customer’s account without an Order from the Court… In the case at hand, the Defendant have failed to act professionally in dealing with the Claimant’s account. The freezing and or suspension of the Claimant’s account No. 2004272706 in the Defendant’s Bank was carried out without due process of law i.e. a Court Order… On the contention of the Defendant that his case cannot be effectively disposed of without granting the Respondent the opportunity to lead evidence in this case. This Court is fortified by the provision of Order 15 Rule 5 (2) & 7 (2), Order 20 Rule 1 and Order 23 Rule 2 (1) (2) (3) of the High Court of the FCT (Civil Procedure) Rules 2018… The import of these provisions is that Courts can enter judgment on the pleadings where it does not raise issues for trial in its opinion… The Defendant ought to have been satisfied that there was a Court Order before freezing the account of the Claimant. I therefore, found the Defendant liable for breach of contract.” See pages 63 – 68 of the Record of Appeal.

My lords, I have taken time to reproduce both the relevant averments in the pleadings of the parties as well as the crucial depositions of facts in the affidavit and counter-affidavit of the parties. Let me now produce the applicable rules of the lower Court under which the Respondent’s application was filed by the Respondent, opposed by the Appellant and heard and determined in favor of the Respondent against the Appellant by the lower Court.

By Order 15 Rule 5(1) (2) of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2018, it is provided thus:
1. Every allegation of fact in any pleading if not specifically denied in the pleadings of the opposing party shall be taken as admitted except it is against a person under legal disability.
2. A general denial in any pleading shall not operate as denial of any specific fact in the pleading of the opposing party.
By Order 20 Rule 4 of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2018, it is provided thus:
“The Court may on application at a pre-trial conference or at any other stage of the proceeding where admission of facts has been made either on the pleadings or otherwise make such judgment as upon such admissions a party may be entitled to, without waiting for the determination of any other question between the parties.”
By Order 23 Rule (2) (1), (2) and (3) of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2018, it is provided thus:
(1) Any person may by his pleadings raise any point of law and the Court may dispose of that point so raised before, at or after the trial.
(2) Where in the opinion of a Court or Judge the decision on the point of law substantially disposes of the whole action or of any distinct cause of action, ground of defense, set off, counter claim, or reply in part, the Court may then dismiss the action or make such orders as maybe just.
3. A Court or Judge may order any pleadings to be struck out on the ground that it discloses no reasonable cause of action or answer and where a pleading is shown to be frivolous or vexatious, the Court or a Judge may order the action to be stayed or dismissed, or judgment to be entered according.”
In law it is true, and as was ably submitted by the learned counsel for the Appellant, that for an admission to have probative value it must clearly, precisely and unequivocally express the admitting mind of the person. Thus, an alleged admission lacking in exactness and firmness of purpose would not qualify as an admission. An admission must therefore, be direct and positive to be given the requisite probative weight in the ascription of probative value by the Court. See Coker V. Olukoga (1994) 2 NWLR (Pt. 329) 648 AT p. 662. See also Onwuanumkpe V. Onwuanumkpe (1993) 8 NWLR (Pt 310) 186; Nwankwo V. Nwankwo (1995) 5 NWLR (Pt. 394) 153 AT p. 171; Orient Bank (Nig) Plc V. Bilante Intl. Ltd (1997) 8 NWLR (Pt 515) 37 AT pp. 90 – 95.

Now, looking at and considering dispassionately the crux of the claim of the Respondent that the Appellant in freezing and or suspending the operation of his account for about five months did so without any Order of Court authorising it in that behalf, can it be said that the response of the Appellant in its averments in the Statement of Defence amounted to an admission or a denial and or raised any triable issue for which the Respondent’s case ought to have been heard at plenary trial on oral and documentary evidence before judgment is entered according to law?

Having considered the averments in the pleadings of the Appellant, the defence of the Appellant was simply that it acted on the instruction of the EFCC though there was no Court Order to that effect but nevertheless it was bound to comply with the directive of the EFCC, being a law enforcement agency of the Government and to avoid any unpleasant consequences as it had in the past experienced with the EFCC in matters of this nature. So, is this an admission or a denial and does it in any way raise any serious or triable issue for which the Respondent’s case ought to have been taken to plenary trial on oral evidence of the parties? The case of the Respondent was not whether or not the Appellant was under an obligation to obey the directives and or instructions of the EFCC but whether or not the Appellant in freezing and or suspending the operation of his salary account into which his salaries were continuously being paid between January – May 2019 acted in compliance with due process of law under an Order of Court to that effect? It would appear that in the entirety of the averments of the Appellant in both its Statement of Defence and Counter-Affidavit it failed to provide any answer to the crux of the claims of the Respondent.

In my finding therefore, the Appellant neither pleaded nor showed any Court Order pursuant to which it acted in freezing and or suspending the operation of the Respondent’s account with it. In law, this is clearly an admission of the case of the Respondent that the Appellant had no Order of Court when it froze and suspended the operation of the account of the Respondent between January – May 2019. Indeed, no amount of oral evidence given on the facts as pleaded by the Appellant can amount to a denial of the case as pleaded by the Respondent on the state of the pleadings of the parties. The defence being put forward by the Appellant has no correlation with the case made against it by the Respondent. There was therefore, in my finding even no triable issue disclosed in the pleadings of the Appellant for which the Respondent’s case ought to have been taken to plenary trial on oral evidence between the parties. There was truly nothing to be tried on the face of the averments of the Appellant showing that the claims of the Respondent, as to what the Appellant did, were true and uncontested. Indeed, in law fact admitted needs no further proof and admission is, perhaps the best form of proof of a fact. See Section 123 of the Evidence Act 2011, which provides thus:
“No fact needs to be proved in any civil proceeding which the parties to the proceedings or their agents agree to admit at the hearing, or which before the hearing they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings.”
See also U.D.F.U v. Kraus (2001) 24 WRIN 78 AT p. 91, where it was held firmly inter alia thus:
“The law is unequivocal that a fact admitted by the Defendant in his pleading must be taken by a Court of law as established and should therefore be treated as one of the agreed facts between the parties to the suit. Indeed, these facts are directly admitted as in the instant case or deemed admitted as provided for in the Rules of Court dealing with pleadings, such averments do not need to be processed in Court… The judgement of the Court delivered on 17/2/97 based on the admission cannot be faulted.”
See further Solana V. Olusanya & Ors (1975) 6 SC 55; Olubode V. Oyesina & Ors (1977) 5 SC 79; UNIC Insurance Plc V. Fadayi (2018) LPELR-45571 (CA); Ekpemupolo V. Edremoda (2009) 8 NWLR (Pt. 1142) 166.

The only issue is therefore, whether or not the lower Court was right, on the facts in the pleadings of the parties and the circumstances of the Respondent’s application for judgment under its Rules, to proceed to enter judgment against the Appellant in favour of the Respondent on his claims against the Appellant? Now, the letter of EFCC dated 31/12/2018 and written to the Appellant and requesting the Appellant to place a caution on the Respondent’s account is neither a Court order nor part of the terms of the contract of Banker/Customer relationship between the Appellant, a Banker and the Respondent, its customer. Thus, no wonder, the Appellant had even on its own showing disregarded and discarded the subsisting instruction of the EFCC and used its own discretion to allow the Respondent to operate his account again even when the EFCC, which the Appellant dreads so much, had not given any contrary direction to its earlier instruction given to the Appellant vide its letter of 31/12/2018.

Honestly, the entire alleged defense of the Appellant is sheer bukum and a charade and when taken together amounted to nothing but a direct and unequivocal admission by the Appellant that it froze and or suspended the operation of the Respondent’s account without any Order of Court to that effect in a country where the rule of law is sacrosanct. In Sofekun V. Akinyemi & 4 Ors. (1980) LPELR 3091 SC, the Supreme Court per Aniagolu JSC (God bless his soul) had expressed the strong opinion that it is essential in a democracy as we have in this country that the rights of citizens be protected in order to check arbitrary use of power by the Executive or its Agencies.

The lower Court was and is still bound to obey its Rules except where such rule runs contrary to constitutional or other provisions of the law and or tends to hinder and or hamper the doing of justice to parties before it. Indeed, Rules of Court are not made for the fun of it and to be toyed with but rather they are handmaids geared towards the attainment of justice. Thus, so long as a rule of Court is neither inconsistent with the Constitution nor hinders the due administration of justice it must be obeyed and therefore, its obedience by the lower Court cannot form the basis of any genuine and plausible complaint against the lower Court. The Courts as well as the parties are bound by the Rules of Court. They cannot simply or merely wish the Rules of Court away or ignored. See Nnachi V. Onuorah & Anor (2011) LPELR-4626 (CA) AT pp. 16-17, where this Court per Garba JCA (as he then was but now JSC) had stated inter alia thus:
“The law is settled that the Rules of Court binds both the Court and especially the parties in the preparation of processes to be filed in the Court. The Rules of Court are not intended or made merely to adorn the pages on which they were printed and to decorate the shelves or libraries of the Court, but meant to be complied with since it regulates the practice and procedure in the exercise of the Court’s powers and jurisdiction over matters that come before them. Because our Courts are Courts of law, their powers and jurisdiction conferred by the law should or must be exercised in compliance or adherence with the rules of practice and procedure pursuant to the law. The primary duty of the Court is to do justice in cases that come before them, in accordance with the Rules of the Court provided to guide the procedure for the attainment of such justice which is to be justice according to the law applied to the peculiarities of a given case.”
See also Bakare V. Apena (1986) 6 SC 467 AT p. 468, where the Supreme Court per Aniagolu JSC (God bless his soul) had succinctly stated inter alia thus:

“A judge will not adopt a method of adjudication alien to procedural rule of justice upon a plea that he is actuated by the noblest of intentions and an impassionate zeal, for justice which propels him to bizarre methods of arriving at justice holding as it were, as justifying Machiavellian principle, that the end justifies the means. The Court as the last resort will indeed do justice by the procedure laid down by law and constitution. The moment a Court ceases to do justice in accordance with the law and procedure laid down for it, it ceases to be a regular Court to become a kangaroo Court.”

I had earlier set out the provisions of Order 20 Rule 4 of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2018, by which the lower Court is empowered, on application at Pre-trial Conference or at any other stage of the proceeding where admission of facts has been made, either in the pleading or otherwise, to make such judgment as upon such admissions a party may be entitled to without waiting for the determination of any other question between the parties. This is exactly what the lower Court did and quite rightly too in my finding and on the facts and circumstances of the instant case, it cannot be faulted at all.
Indeed, and in truth the Appellant, aside the clear admissions of the claim of the Respondent that it froze and suspended the operation of his account without any Order of Court to that effect, did not disclose any triable issue at all in the entire averments in its Statement of Defense. It follows therefore, the lower Court was perfectly right to have, on the application of the Respondent for judgment against the Appellant on the basis of its pleadings, proceeded to enter judgment against the Appellant in line with the provisions of its Rules. In Darlvis Investment Ltd V. Hallmark Bank Plc (2009) LPELR-8415(CA), this Court had held inter alia thus:
“The law is also trite that where in pleading or otherwise admission of fact is made, any party to the action may apply to Court for such judgment or an order to be entered or made thereupon without necessarily waiting for the determination of the remaining issues between the parties. The Court in the circumstances has the power to give such judgment or make such order it deems expedient.” See also Unity Bank Plc V. Denclag & Anor (2012) 1 – 3 SC 77 AT pp. 98 – 99, where the Supreme Court had reiterated inert alia thus:
“Where pleadings do not raise serious triable issues, the Court is entitled to draw necessary conclusions from the pleadings and proceed to enter judgement for the party in appropriate cases.”
Interestingly, the action of the Respondent in applying for judgment against the Appellant as well as the decision of the lower Court to proceed to enter judgment against the Appellant on the application of the Respondent represents the new face of justice in the land whenever the averments in the pleadings of a Defendant discloses no triable issue or defense on the merit against the claim of the Claimant. It is the right way to go and it is highly commendable. I hereby so commend the Lower Court. It saves a lot of valuable judicial time to be spent on considering at plenary trial an alleged defense that is on its face and by itself hopeless and amounting to no defense at all. See Akinola & Anor V. Solano (1986) 4 SC 106, where the Supreme Court per Oputa JSC, (God bless his soul) had stated inter alia thus:
“It is time Courts… begin looking critically at the pleadings and where appropriate giving judgment on the pleadings, if no triable issue of fact, Plaintiff’s case should be considered on his pleading and the applicable law. Where the Plaintiff’s statement of claim does not disclose a cause of action… instead of filing a Statement of Defense, the Defendant should move the Court to have the case dismissed. Alternatively, where the Statement of Defense does not answer, deny… the essential facts on which the Plaintiff’s case rests, the Plaintiff should be courageous enough to ask for judgment on his Statement of Claim.”

My lords, the lower Court had, upon due consideration of the facts as relied upon by the parties and in the light of the applicable law and rules of the lower Court, found and held firmly, and quite rightly too in my view, based on both the averments in the pleadings and the non-joinder of any issue on the claim of the Respondent against the Appellant, coupled with the well settled position of the law, that the freezing and or suspending of the Respondent’s account No. 200472706 in the Appellant Bank without an order of Court was one carried out without due process of law and also amounted to a breach of Banker/Customer relationship, the Appellant having failed to exercise reasonable care in ensuring that there was an Order of Court before freezing and or suspending the Respondent’s account.

It is obvious, the Appellant consented to the procedure before the lower Court when it filed its Counter-Affidavit to the Respondent’s application for judgment and argued its opposition. Thus, it is my view that, the Appellant cannot, having chosen its own strategy to contest the Respondent’s application, now turn round to accuse the lower Court of breaching its right to fair hearing merely because it lost in its vehement opposition to the Respondent’s application for judgment and its strategy appears to have gone awry. The right to fair hearing is not breached merely because a party lost his case. See NNPC V. Samfadek & Sons Ltd (2018) 2 – 3 SC (Pt. 1) 32. See also Akanbi V. Alao (1989) 5 SC 1.

On the heavy weather made of the reliance by the lower Court on the decision of this Court in G.T. Bank Plc V. Adedamola (2019) 5 NWLR (Pt. 1664) 30, I find all the diverse and vehement contentions of the Appellant on this issue as amounting to nothing but raising a storm in a tea cup. I have taken a calm look at the facts of that case and the facts in the instant case as well as the applicable laws and I find that there is nothing to distinguish in the core of the claims in both cases, both as to facts and the applicable laws. Indeed, no two cases need or must or ought to be the same in every material particular as to dates, time, venue etc., before decision in one case can bind the other case once the facts are similar and not dissimilar. The distinction sought to be made by the Appellant between the instant case and the decision in G.T. Bank Plc V. Adedamola (2019) 5 NWLR (Pt. 1664) 30, is truly like making a distinction between six and half a dozen – none exists.
I find that on both the facts and circumstances and the position of the law, the lower Court, by virtue of the operation of the time – tested principles of ‘stare decisis’, correctly felt bound and followed the decision in G.T. Bank Plc V. Adedamola (2019) 5 NWLR (Pt. 1664) 30 AT p. 43, for indeed it had not even the luxury of doing otherwise. I therefore find the reliance by the lower Court on the decisions of this Court in G.T. Bank Plc V. Adedamola (2019) 5 NWLR (Pt. 1664) 30, with which it was bound, as very apt as it was relevant and applicable on both the facts and the principles of law enunciated therein. See Mekwunye V. Lotus Capital Ltd & Ors (2018) LPELR-45546 (CA) AT pp. 39 – 41, where this Court per Tijani Abubakar JCA, (as he then was but now JSC) had stated inter alia thus:
“It is the cardinal principle of law under the doctrine of stare decisis that every inferior Court is bound by the decision of a superior Court and it is not the place of an inferior Court to say that the decision of the superior Court was wrongly decided.”
See also Atolagbe & Anor V Awuni & Ors(1997) 9 NWLR (Pt. 552) 536; NEPA V. Onah (1997) LPELR-1959 SC; PDP V. Oranezi (2017) LPELR-43471 (SC).

I cannot but agree with the apt and unassailable submission of the learned counsel for the Respondent, against which the learned counsel for the Appellant really had no answer, that that had the Appellant, a Banker, not failed in its duty under its contract with the Respondent, its Customer, to exercise reasonable care and skill with regards to the Respondent’s account, it would have enquired and found out from the EFCC if there was any Order of Court to authorize the freezing and or suspension of the Respondent’s account with the Appellant. Indeed, this is the least a reasonable Bank would be expected to have done in respect of the account of its customer, with whom it has a contract but which care and skill the Appellant had been shown to have thrown into the winds. Thus, the plea of the Appellant that it acted on the instruction of the EFCC, which is not an Order of Court, to freeze and or suspend the operation of the Respondent’s account with the Appellant, is unlawful. This is so because obedience to an unlawful Order and or instruction is not a justification for a wrongful act in law and therefore, does not avail the Appellant. See G.T. Bank Plc V. Adedamola (2019) 5 NWLR (Pt. 1664) 30 AT p. 43, where it was held inter alia thus:
“Before freezing a customer’s account or placing any form of restrain on any bank account, a bank must be satisfied that there is an Order of Court”.
The lower Court was therefore right when it held that the relationship between the Respondent and the Appellant was that of a Banker/Customer and thus contractual in nature, a breach of which may lead to damages as it is the duty of the Appellant, the Bank to exercise reasonable care and skill in dealing with the account of the Respondent, its customer. There is neither anything to add nor subtract from the correct findings and the sound and lucid reasoning of the lower Court. See Agbanelo V. UBN (2000) 4 SC (Pt. 1) 233 AT p. 24, where the Supreme Court had stated firmly and with finality inter alia thus:
“The Defendant’s duty to exercise reasonable care and skill in regards to the customers affairs is undoubted… A Bank has a duty under its contract with the Customer to exercise reasonable care and skill in carrying out its part with regards to operations within its contract with its Customers. The duty to exercise reasonable care and skill extends over the whole range of banking business within the contract with the Customer.”
See also Allied Bank (Nig) Limited V. Akubueze (1997) 6 NWLR (Pt. 509) 374; Union Bank of Nigeria Limited V. Nwoye (1995) 3 NWLR (Pt. 435) 135; Guaranty Trust Bank Plc V. Odeyemi Oluyinka Joshua (2021) LPELR-53173 (CA), per Abiriyi JCA.

On the issue of allegation of breach of the Appellant’s right to fair hearing by the lower Court, the law is that in considering whether or not a proceeding or judgment of a Court was in breach of the right to fair hearing of a party, the law is that each case of allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case. This is so because fair hearing is primarily a matter of fact. It is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constituted a breach of the party’s right to fair hearing. See Newswatch Communications Limited V. Alhaji Ibrahim Attah (2006) 12 NWLR (Pt. 993) 144. See also Unity Bank Plc V. Engr. Emmanuel Adeleke Benedick (2021) LPELR-54549 (CA), per Georgewill JCA.
The term ‘fair hearing’ is in most cases synonymous with fair trial and natural justice, an issue which clearly is at the threshold of our legal system and thus once there has been a denial of fair hearing the whole proceedings automatically becomes vitiated. A denial of fair hearing can ensure from the conduct of the Court in the hearing of a case or in the judgment of the Court. However, the true test of fair hearing is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case. See Otapo V. Sunmonu (1987) 2 NWLR (Pt. 58) 587; Wilson V. AG of Bendel State (1985) 1 NWLR (Pt. 4) 572. See also A. U. Amadi V. Thomas Aplin & Co Ltd (1972) All NLR 413; Mohammed Oladapo Ojengbede V. M.O. Esan & Anor (2001) 18 NWLR (Pt. 746) 771.
My lords, having painstakingly gone through the entirety of the processes filed by the parties, their pleadings and their affidavit and counter-affidavit evidence, the relevant Rules of the lower Court and the judgment of the lower Court in the light of the complaint of the Appellant, I can find neither any breach nor even attempted or near breach of the right of the Appellant to fair hearing as both parties were afforded equal opportunity by the lower Court in the hearing and determination of the Respondent’s application for judgement in line with the applicable Rules of the lower Court and in accordance with the applicable laws on the issues in contention between the parties. Indeed, for all of its importance in the adjudication process, the issue of fair hearing must never be raised in bad faith or merely intended as a red herring to raise a storm in a tea cup without any factual basis. See Adegbesin V. The State (2014) 9 NWLR (Pt. 1413) 609 AT pp. 641 – 642, where Ngwuta JSC, (God bless his soul) had pronounced emphatically thus:
“As for the related complaint of denial of right to fair hearing, my lord Chukwuma Eneh JSC had this to say: “There can be no doubt from the foregoing that fair hearing has become the whipping principles for counsel trying to catch at a straw to sustain a modicum of standing in a hopeless case where the case is already dead as a dodo. The approach of counsel in general is deprecated. Fair hearing should, from what it is and represents in our adjudicative process be raised only seriously and not lightly.” I agree with his Lordship.”
See also Abubakar V. Yar’ Adua (2008) 4 NWLR (Pt. 1078) 465 AT p. 503; Agbapounwu V. Agbapuonwu (1991) 1 NWLR (Pt. 165) 33 p. 40; Elephant Group Plc. V. National Security Adviser & Anor (2018) LPELR-45528 (CA), per Georegwill JCA; See also Unity Bank Plc V. Engr. Emmanuel Adeleke Benedick (2021) LPELR-54549 (CA), per Georgewill JCA.
My lords, in law the right to fair hearing is not breached merely because a party, in the instant appeal, the Appellant, lost his case and is thus only observed if a party wins his case. The Appellant’s right to fair hearing, in my finding therefore, was not in any way or manner breached by the lower Court in both its proceedings leading to and in its judgment delivered on 28/9/2020, the subject matter of this appeal and I so firmly hold.

In the light of all I have stated and held as above, issues one and two for determination are hereby resolved against the Appellant in favour of the Respondent.

On the whole therefore, having resolved issues one and two for determination against the Appellant in favor of the Respondent, I hold that this appeal lacks merit and is thus, liable to be dismissed. Accordingly, it is hereby dismissed.

In the result, the judgment of High Court of the Federal Capital Territory, Abuja Coram: A. S. Adepoju J, in Suit No. FCT/HC/CV/3034/2019: Yusuf Waili V. Zenith Bank Plc, delivered on 28/9/2020, in which some of the claims of the Respondent as Claimant were granted against the Appellant as Defendant, is hereby affirmed.
There shall be cost of N300,000.00 against the Appellant in favour of the Respondent.

PETER OLABISI IGE, J.C.A.: I had the opportunity of reading in advance the judgment of my learned brother GEORGEWILL, JCA on the appeal herein.
I have no doubt in my mind that the Appellant was not denied the opportunity of being heard by the lower Court.
The Appellant’s appeal is not meritorious and I too hereby dismiss it.
I abide with consequential Orders of my Lord, GEORGEWILL, JCA.

BATURE ISAH GAFAI, J.C.A.: I have before now read in draft the judgment just delivered by my learned brother Sir Biobele Abraham Georgewill, JCA. My lord has characteristically dealt with all the Issues in this Appeal comprehensively and satisfactorily; such that there is nothing more useful that I may add here. I adopt the illuminating reasonings expressed therein and the conclusion reached thereby; by which I too dismiss this Appeal for lacking in merit. I also abide by the Order on cost against the Appellant.