MAINSTREET BANK & ORS v. HAMMED

CITATION: (2018) LPELR-45557(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON FRIDAY, 11TH MAY, 2018Suit No: CA/L/1369/2016

Before Their Lordships:

TIJJANI ABUBAKAR Justice, Court of AppealBIOBELE ABRAHAM GEORGEWILL Justice, Court of AppealUGOCHUKWU ANTHONY OGAKWU Justice, Court of Appeal

Between1. MAINSTREET BANK (NIGERIA) LIMITED2. SKYE BANK (NIGERIA) PLC3. GBADEBO HASSAN ADEDOKUN

- Appellant(s)

AndALHAJI SAKA HAMMED(Trading under the name and style of SAKAHAMMED & BROTHERS)

- Respondent(s)

RATIO DECIDENDI

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1. APPEAL - INTERFERENCE WITH FINDING(S) OF FACT(S): When an appellate court will notinterfere with the findings of the lower court"The Appellants have not put anything before this Court to show that the findings and evaluation ofevidence by the Lower Court partly reproduced above is perverse or has occasioned a miscarriage ofjustice. It is well settled principle of law that unless the findings of facts by a trial Court are patentlyperverse and cannot reasonably be supported by the evidence adduced at the trial, an appellateCourt will not ordinarily disturb or interferewith such findings, this is so because it is the trial Court that had the opportunity of seeing thewitnesses and watching their demeanor. See NWOBODO Vs. ONOH & ORS [1984] All NLR 1; (1984)LPELR-2120 [SC] Pg. 37-38, Paras.G-C; MAINAGGE Vs. GWAMMA [2004] 14 NWLR (Pt.893) 323;(2004) LPELR-1822 (SC) Pg. 16-17, Paras, F - A; CPC Vs. INEC & ORS (2011) LPELR-8257 (SC) Pg.92-93, Paras. F - B; FRN Vs. DAIRO & ORS (2015) LPELR-24303 (SC) Pg.48-49,Paras. D - C and FALEYE& ORS Vs. DADA & ORS (2016) LPELR-40297 (SC) Pg.55-56, Paras. E - D where the Supreme Courtper SANUSI JSC held that:"It must be emphasized here and it is even settled law, that an appellate Court does not as a matterof practice or law interfere where trial Court unquestionably evaluates and justifiably upraises thefacts. The reason for this practice is because it is the trial judge who takes down relevant evidence.Thereafter, when writing his ruling or judgment and the trial judge weighs the evidence in thesurrounding circumstances of the case. That is called evaluation. When evaluation of evidence isproperly done, the findings of that trial Court are difficult to be faulted by any appellate Court..."Finally, in determining this issue, let me restate that I have carefully considered the 2nd AmendedStatement of Claim contained at pages 723 and 1025-1033 of Vol. 2 of the Records of Appeal as wellas the evaluation and findings of facts by the learned trial Judge as contained at pages 1153 -1164 ofVol.2 of the Records of Appeal and I am of the view that the particulars of negligence alleged by theRespondent against the Afribank Plc were pleaded and evidence was led in proof of the particulars.The evaluation of the evidence by the Lower Court and the conclusion reached have not been shownto be perverse or to have resulted in a miscarriage of justice against the Appellants in thecircumstances, this Court will not therefore interfere with the decision of the Lower Court on thisissue." Per ABUBAKAR, J.C.A. (Pp. 39-41, Paras. D-D) - read in context

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2. EVIDENCE - ISSUE ESTOPPEL: Doctrine of issue estoppel and its effect"The second issue for determination is "whether or not the learned trial Judge ought not to havedismissed the matter having made a finding that prayer 2 of the claim was caught up with issueestoppel but refused to dismiss the entire claim?" The Appellants' contention is that the entire claimsin the suit by the Respondent were caught up by issue estoppel and that all the claims/reliefs soughtby the Respondent rest on Prayer 2 and that when the Respondent's claim in respect of sumsdeducted from the Account No. 36000025Q in Suit No. ID/24/07 failed, the Respondent in an attemptto have a second bite at the cherry included claims in respect of the same Account No. 3 6000025Qin the instant suit. On the other hand, Respondent contended that Prayer 2 of the reliefs sought bythe Claimant/Respondent can easily stand and/or fall alone without affecting the rest of theClaimant/Respondent's case and that the trial Judge was right not to have dismissed the entire suitbecause none of the other prayers or reliefs sought by the Claimant/Respondent was contingent and/or dependent upon the said Prayer 2.I have carefully read the decision of the learned trial Judge at pages 1149 -1153 of Vol. 2 of theRecords of Appeal on the issue of estoppel and I am in agreement with the decision of the learnedtrial Judge. At page 1147, the learned trial Judge itemized the claims of the Claimants as contained atpages 1032-1033 of Vol. 2 of the Records of Appeal and in determining whether the reliefs soughtare caught up by estoppel in the face of the judgment in Suit No:ID/24/2007 which was tenderedbefore it as contained at pages 947 - 979 of Vol. 2 of the Records of Appeal. The learned trial Judgecame to the conclusion that the 1st and 2nd Appellants are not parties in Suit No.ID/24/07 and thatthe claims against them are sustainable but that, the claim against the 3rd Appellant in respect of hisdealings with the Account No. 36000025Q was subject of the final decision of the Lower Court in SuitNo: ID/24/2007 and therefore struck out prayer No. 2. The learned trial judge held as follows:"Prayer i and iii which relates to the 1st defendant was not determined in ID/24/07 as the 1stdefendant was not a party in that case. Prayer (i) and (iii) are therefore not caught by the plea asparties are different and issues not dealt with in ID/24/07. The plea of estoppels fails in respect of theissues in prayer (i) and (iii)."The foregoing findings of the Lower Court are in accord with the settled position of the law. Prayer 2of the Respondent's claim in the instant suit as contained at pages 1032 of Vol. 2 of the Records ofAppeal borders on the 3rd Respondent's tampering with the Respondent's account No.36000025Qand same was made an issue in Suit No: ID/24/2007 between the 3rd Appellant and the Respondentand in the judgment of the Lower Court in the said Suit No: ID/24/2007, the Court determined theissue against the Respondent. It is therefore not permissible by the principle of issue estoppel for thesame issue which borders on the 3rd Appellant's dealings or tampering with the Respondent to be re-litigated in the instant suit. See OSUNRINDE & AJAMOGUN [1992] NWLR (Pt.246) 156; (1992)LPELR-2819 (SC) Pg.39, Paras. B - C where the Supreme Court held as follows:"It is trite that where a Court of competent jurisdiction has settled, by a final decision, the matter indispute between the parties neither party or his privy may re-litigate that issue again by bringing afresh action. The matter is said to be res judicata..."See also BWACHA Vs. IKENYA & ORS [2011] 3 NWLR 610; (2011) LPELR-8105 (SC) Pg.20-21, Paras. C- G; GBEMISOLA Vs. BOLARINWA & ANOR (2014) LPELR-22463 (SC) Pg. 21-23, paras. B - A; APC Vs.PDP & ORS (2015) LPELR-24587 (SC) Pg.116. Paras. B - D; AJISEGIRI Vs. SALAMI & ORS (2016) LPELR-40567 (CA) Pg.16, Paras. B - F and AMAZU & ORS Vs. IRE & ORS (2017) LPELR- 42784 (CA) Pg.29-30,Paras. F - E.Having found that the one of the issues before it has been determined in a final decision in aprevious suit before the Lower Court, the learned trial judge was right to have struck out theRespondent's prayer 2. The question now to be resolved is whether the entire suit ought to havebeen struck out alongside Prayer 2. Where one or more of the several relief(s) sought in a suit is notgrantable or has been determined in a previous suit as it is in the instant case, the affected reliefswill be rightly struck out without necessarily striking out the entire suit where there are other reliefswhich can survive on their own without the incompetent reliefs that had been struck out. See: FIRSTBANK OF NIGERIA PLC & ORS Vs. A.G. FEDERATION (2013) LPELR-20152 (CA) Pg. 56, Paras. A - C. Iam of the view that the decision reached by the learned trial Judge on this point is unassailable, thisissue is therefore resolved in favor of the Respondent against the Appellants."Per ABUBAKAR, J.C.A.(Pp. 31-35, Paras. A-B) - read in context

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3. JUDGMENT AND ORDER - ORDER OF COURT: Effect of a valid and subsisting order of court"...The 1st Appellant herein is the 2nd Petitioner in Suit. No.FHC/L/CS/567/15 while the 2nd Appellantherein is the 1st Petitioner in the said Suit. No: FHC/L/CS/567/15. The Appellants' counsel was awareof the Petition by the 1st and 2nd which led to the Order of the Federal High Court. The Order wastendered before the Lower Court, the Appellant did not object to it. The Appellants' counsel referredto the said Order to argue that the 1st Appellant has been dissolved. Learned Counsel for someinexplicable reasons chose to ignore the conspicuous and unequivocal orders of the Federal HighCourt to the effect that:" any legal proceedings by or pending against the 2nd Petitioner" (1stAppellant) "be maintained and continued by or against the 1st Petitioner" (2nd Appellant).The Order of the Federal High Court is valid and subsisting until set aside on appeal by a Court ofcompetent jurisdiction. See AJAO & ORS Vs. ALAO & ORS [1986] NWLR (Pt.45) 802; (1986) LPELR-285(SC) Pg.73, Paras. A - B where the Supreme Court held that: "It is well settled that judgment of acompetent Court subsists and is binding until set aside on appeal, or by other judicial proceeding..." Icannot but agree with the submissions of learned Counsel for the Respondent that the Order of theFederal High Court obviates the necessity to seek leave of the Federal High Court and that the 1stAppellant was notwound-up but "dissolved without being wound up". No liquidator was appointed over the 1stAppellant. In the circumstance therefore, this issue is also resolved against the Appellants and infavour of the Respondent."Per ABUBAKAR, J.C.A. (Pp. 43-45, Paras. E-A) - read in context

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4. LEGAL PRACTITIONER - STAMP/SEAL: Effect of failure to affix the approved seal and stamp of theNigerian Bar Association on a legal document"The first issue to resolve in this appeal is "Whether or not the Judge was right to have relied on thewrit of summons and 2nd amended statement of claim having found out that the same was voidableand not invalid, yet failed to order the Respondent to regularize his position". The contention of theAppellants is that the Lower Court ought to have ordered the learned Counsel for the Respondent toregularize his process by affixing his stamp in order to bring the process into conformity with therules and that by affixing the stamp and seal of another counsel to the Written Address filed on the23rd February, 2016, the Respondent's counsel confirms the conclusion that the Respondent's Writof Summons and Statement of Claim were prepared and signed by a non-legal practitioner or aperson not registered to practice or use the NBA stamp and seal as at the 8th day of December,2015 when the Writ was dated or at any time at all in 2015 or 2016. Learned Counsel for theRespondent argued that the Appellants' having failed to complain on time and having taken furthersteps in the proceedings are deemed to have waived the failure to affix NBA stamps and seals.The provisions of Order 10(1) of the Rules of Professional Conduct, 2007 are clear having providedthat "A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of anyGovernmental department or Ministry of any corporation, shall not sign or file a legal documentunless there is affixed on any such document a seal and stamp approved by the Nigerian BarAssociation." The import of this Rule when read together with Order 10 (2) & (3) of the Rules ofProfessional Conduct, 2007 is that documents and processes filed by a legal practitioner must bearthe Nigerian Bar Association (NBA) approved stamp and seal of the legal practitioner, or of one of thelegal practitioners listed on such document or process. The argument herein however is: what is theeffect of failure to comply with the provision of Order 10 [1] of the Rules of Professional Conduct,2007?In resolving this question, I will have recourse to the decision of the Supreme Court in SENATORBELLO SARAKIN YAKI (RTD) & ANOR Vs. SENATOR ATIKU ABUBAKAR BAGUDU & ORS (2015)LPELR-25721 (SC) relied upon by both parties in this appeal, the Supreme Court per NGWUTA JSC atPg. 6-8, Paras. A to E held as follows and I quote:"What is the consequence of a legal document signed and filed in contravention of Rule 10 (1) of theRules? The answer is as provided in Rule 10 (3) to the effect that "...the document so signed or filedshall be deemed not to have been properly signed or filed." It is my humble view that the legaldocument so signed and/or filed is not null and void or incompetent like the case of a Court processsigned in the name of a corporation or association (even of lawyers) ... The document in terms of therule, is deemed not to have been properly signed or filed, but not incompetent as the 2ndRespondent assumed. It has been signed and filed but not properly so signed and filed for the reasonthat the condition precedent to its proper signing and filing had not been met. It is akin to a legaldocument or process filed at the expiration of the time allowed by the rules or extended by theCourt. In such cases, the filing of the process can be regularized by extension of time and a deemingorder. In the case at hand, the process filed in breach of Rule 10(1) can be saved and it's signing andfiling regularized by affixing the approved seal and stamp on it. It is a legal document improperlyfiled and the fixing of the seal and the stamp would make the filing proper in law. Since this was notdone, the Court cannot take cognizance of a document not properly filed and the filing notregularized."Therefore, following the provisions of Order 10 [1] of the Rules of Professional Conduct, 2007 and thedecision of the Supreme Court, the effect of the 2nd Amended Statement of Claim filed by theRespondent herein without the approved NBA stamp and seal is that it is voidable until remedied orregularized by affixing the NBA stamp and seal of the legal practitioner who filed it in the firstplace."Per ABUBAKAR, J.C.A. (Pp. 24-27, Paras. A-D) - read in context

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5. PRACTICE AND PROCEDURE - WAIVER OF RIGHT: Whether a party who fails to timeously raisean objection to the competence of a voidable process will be deemed to have waived his right"Learned Counsel for the Respondent raised one fundamental point in his address, he submittedthat, on the 24th day of November, 2015, learned Counsel for the Appellants cross-examined theRespondent extensively on the said voidable process, and only raised the issue of competence of theprocess in his written address dated 7th January 2016, learned Counsel therefore urged this Court tohold that the Appellants waived their right to object to the competence of the process. The learnedCounsel contended that the competence of the process is an issue of law and can be raised at anytime.I think this issue is no longer a subject matter of any jurisprudential controversy, any issue relating tocompetence of process must be raised timeously otherwise it will be taken that the irregularity iscondoned and the right of the party to object to the competence of the process will be deemed ashaving been waived. It is clear from the records that the Appellants herein erected their defense onthe defective process, actively took part in generating evidence at the trial, I think it is too late forthe Appellants to raise any objection touching on the failure by the learned Counsel to affix his stampand seal, the law takes it that they have waived their right.At page 1149 of Vol. 2 of the Records of Appeal that the learned trial Judge held as follows "...suchdocuments are deemed not to have been properly signed and not that they are invalid, suchdocuments are redeemed and made valid by a simple directive by the judge or the relevant authorityat the filing of the voidable document for erring counsel to affix stamp and seal as provided for... Ihold that the process is voidable and not invalid and can be relied on by the Court."The settled position of the law is that, where a party in litigation receives and acts upon a defectiveprocess, and takes active part in generating evidence on such defective, irregular and voidable Courtprocess, he is deemed to have condoned the defect and therefore waived his right to challenge thecompetence of the process he cannot be heard to grumble afterwards, the party must takeresponsibility for his slumber and indolence. In the recent decision of the Supreme Court inHERITAGE BANK LIMITED Vs. BENTWORTH FINANCE (NIG) LIMITED, SC.175/2005 DELIVERED ON THE23RD DAY OF FEBRUARY 2018, the Supreme Court per EKO JSC, held as follows:"The facts of this case, particularly on this objection are that in spite of the fact that the statement ofclaim was allegedly not signed by a known legally qualified Legal Practitioner, but by a firm of legalpractitioners, the Appellant as the defendant condoned the defective process. They participated inthe proceedings and the evidence arising from the statement of claim was called after the statementof claim was filed. Judgment of the trial Court based on the evidence elicited from the statement ofclaim was delivered without objection. Even at the Court of Appeal no issue was made of the allegeddefective statement of claim. The Appellant, as the defendant, had clearly condoned the defectivestatement of claim and waived his right to object to the defective process. The right of the defense toobject to the irregularity ex facie the statement of claim is a waivable right, being a private right A.G.KWARA & ANOR Vs. ADEYEMO (supra), ARIORI Vs. ELEMO (1953) 1 SC 13. This issue, accordinglycannot be resolved for the Appellant.?The instant case is similar to the above instance, the Appellant took active part in generatingevidence from the defective process, and did not raise the issue until when final written addresseswere filed, judgment was eventually delivered, I will take it that the Appellants have voluntarily andwillfully condoned the proceedings and therefore waived their right to challenge the irregularity inthe 2nd amended statement of claim filed by the Respondent."Per ABUBAKAR, J.C.A. (Pp. 27-30,Paras. D-F) - read in context

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6. PRACTICE AND PROCEDURE - WAIVER OF RIGHT: Whether a party who fails to timeously raisean objection to the competence of a voidable process will be deemed to have waived his right"I shall in view of the fundamental issue of waiver of voidable defect in process and not necessarilyvoid process in the light of the Rule in Okafor v. Nweke (2007) 10 NWLR (Pt.1043) 521, say a word ortwo in support of the illuminating lead judgment.It appears to me that while the Rule in Okafor V. Nweke remains immutable as the extant law andleaves no room for any waiver where the Court process is void, the rigours of the said rule as regardsCourt process which is not void but merely voidable has been mitigated with the advent of thedecision of the Supreme Court in Appeal No.SC/175/2005:Heritage Bank Limited V. BentworthFinance Nigeria Limited, unreported judgment delivered on 23/2/2018 per Eko JSC., a very welcomedevelopment in the law, in my humble opinion, to meet the ends of justice so that a party who isaware of mere irregularity in a Court process but proceeds with the proceedings to its conclusion isnot allowed to take benefit of the Rule in Okafor V. Nweke to void in its entirely the proceedings inwhich he had voluntarily and fully participated without any prompt complaint before the trial Court. Itis thus also my view that in the instant appeal the Appellant has only himself to blame havingwithout any complaint and voluntarily of his own volition fully participated in the entire proceedingsof the Court below cannot in justice and in good conscience be allowed to turn around to challengethe validity of the same proceedings."Per GEORGEWILL, J.C.A. (Pp. 45-46, Paras. E-F) - read incontext

7. TORT - NEGLIGENCE: Whether a party who alleges negligence must plead the acts of negligenceand give specific particulars of same"The law is settled that where negligence is alleged in an action, full particulars of the allegednegligence must be stated and proved by cogent and reliable evidence in support of the particularsof negligence alleged. It is not sufficient to merely make blanket and open-ended allegations ofnegligence. In A.G LEVENTIS (NIG) PLC vs. AKPU [2007] 17 NWLR (Pt.1063) 416; (2007) LPELR-5 (SC)relied upon by both parties in this appeal, the Supreme Court at Pg.15, Paras. C - D per OGBUAGUJSC held that: ''it is firmly established that a party who alleges negligence should not only plead theact or acts of negligence, but should also give specific particulars..." See also DIAMOND BANK PLC Vs.P.I.C LTD [2009] 18 NWLR (Pt.1172) Pg.67 SC; (2009) LPELR-939(SC) Pg.19 Paras. B-D; ABDULLAHI &ANOR Vs. ESTHER MAMZA (2013) LPELR-21964 (CA) Pg.41-42, Paras. B - B and WAEC Vs. MEKWUNYE(2016) LPELR- 40350 (CA) P9.26, Paras. B - E."Per ABUBAKAR, J.C.A. (Pp. 36-37, Paras. D-C) - read incontext

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TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading

Judgment): This appeal is against the Judgment of the

High Court of Lagos State, in the Ikeja Division delivered

by Oke-Lawal (Mrs.) J. on the 30th day of September, 2016

in Suit No:LD/782/2005 as contained at pages 1147 - 1164

of the Records of Appeal wherein the Lower Court entered

judgment in favour of the Respondent (Claimant) who

initiated the suit against the defunct Afribank Nigeria Plc.

The said Afribank Nigeria Plc was taken over by the 1st

Appellant and then, the 1st Appellant was taken over by the

2nd Appellant. The reliefs sought by the Respondent

against the Appellants are as contained in the 2nd

Amended Statement of Claim and other processes at pages

723 - 809 of the Records of Appeal.

Nettled by the decision of the Lower Court, the Appellants

filed the instant appeal. The Appellant's amended Notice of

Appeal containing four grounds of appeal was filed on the

31st day of January, 2017. The Appellants' Brief of

Argument was filed by learned Counsel Elubode B.

Omoboriowo, Esq. on the 31st January, 2017. The Appellant

also filed a Reply Brief on the 10th day of April, 2017. The

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Appellant's Amended Notice of Appeal and briefs of

argument were deemed as properly filed and served on the

13th day of February, 2018.

Learned counsel for the Appellants nominated four

(4) issues for determination, the issues are reproduced as

follows:

1. Whether or not the Judge was right to have relied

on the writ of summons and 2nd amended statement

of claim having found out that the same was voidable

and not invalid, yet failed to order the Respondent to

regularize his position (ground 1)

2. Whether or not the learned trial judge ought not to

have dismissed the matter having made a finding that

prayer 2 of the claim was caught up with issue

Estoppel but refused to dismiss the entire claims

(ground 2)

3. Whether or not the judge was right when she held

that particulars of negligence/fraud were not

necessary for the case of Respondent (claimant) to

succeed against the Appellants herein in a matter

that was founded on fraud and negligence. (ground 3)

4. Whether or not the failure of the Respondent to

seek and obtain leave of Court before proceeding with

case at the High Court was not fatal to his case,

(ground 4).

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The Respondent's brief of argument on the other hand was

filed on the 24th day of March, 2017 through learned

counsel, C. E. Alletor; the brief was deemed as properly

filed and served on the 13th day of February, 2018. The

Respondent adopted the issues nominated for

determination by the Appellants.

SUBMISSIONS OF COUNSEL

ISSUE 1

Learned counsel for the Appellants referred to Rule

10(1)(2) and (3) of the Rules of Professional Conduct, 2007

and the decision of the Supreme Court in YAKI Vs.

BAGUDU [2015] 18 NWLR (Pt.1491) Pg. 346, Paras. A

- C; Pg.316, Paras. C - H & Pg. 322, Paras. D - F to

contend that for the trial Judge to validate and take

cognizance of the Writ of summons and Statement of Claim

improperly filed by the Respondent's counsel, the trial

Judge ought to have directed the Respondent's counsel to

regularize his processes by affixing his stamp in order to

bring the processes in conformity with the rules of Court.

Learned Counsel for the Appellants argued that rather than

respond to the Appellants' objection before the Lower

Court, the Respondent's counsel affixed the stamp and seal

of another counsel to the Written Address filed

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on the 23rd February, 2016 thereby lending support to the

conclusion that the Respondent's Writ of Summons and

Statement of Claim were prepared and signed by a non-

legal practitioner who has or was not registered to practice

or use the NBA stamp and seal as at the 8th day of

December, 2015 when the Writ was dated or at any time at

all in 2015 or 2016. Learned Counsel for the Appellants

urged this Court to resolve this issue in favour of the

Appellants against the Respondent.

In his Response on this issue, learned counsel for the

Respondent referred to Order 10 [1] of the Rules of

Conduct in the Legal Profession and YAKI Vs. BAGUDU

[2015] 18 NWLR (Pt.1491) Pg.346, Paras. A - C to contend

that the learned trial judge was right to have held that the

2nd Amended Statement of Claim was not void but voidable

and could be relied upon by the Court. Counsel argued that

the Appellants' counsel did not at any time raise the issue

of the 2nd Amended Statement of Claim not having the

approved NBA stamp and seal affixed to it until it was first

brought up in the Appellants' final Written Address after

trial had been concluded. Learned counsel submitted that

the fact

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that the Appellants never at any time in the course of the

proceedings at the trial Court or before this Court brought

a formal application challenging the competence of the said

processes distinguished the instant case from that ofYAKI

Vs. BAGUDU (Supra).

Learned counsel further argued that Order 10 (1) of the

Rules of Professional Conduct in the Legal Profession is not

a self-activating rule but only comes into operation when

raised at the point of filing or properly raised by counsel

upon being served with a process in question. Counsel

contended that a party would be deemed to have waived his

right to complain where the party is indolent and/or

negligent in raising an objection on time but proceeds to

take further steps after discovering the irregularity.

Counsel submitted that the proper issue is whether or not

the learned counsel for the Appellant raised any proper

objection by motion before the Court when he first

discovered that the Respondent's solicitor did not affix his

legal practitioner's seal and or stamp to the processes

dated the 8th day of July, 2015 and if they did at all;

whether the objection was raised in a

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proper manner before they took any further steps in the

proceedings?

Learned counsel argued that the unanimous decision in

YAKI Vs. BAGUDU (Supra) is that failure to affix legal

practitioner's stamp and seal to a document contemplated

under Order 10 [1] of the Rules of Conduct in the Legal

Profession is an irregularity that can be waived. Counsel

submitted that the Appellants at various times filed

processes before the Lower Court that were not affixed

with the NBA stamp and seal and referred particularly to

the Appellant's written submissions in support of the

Counter-Affidavit dated 13th May, 2015 and the Motion on

Notice and affidavit of urgency seeking to amend the

Appellants' statement of defense dated 9th November,

2015 which was filed without the stamp and seal of the

solicitors listed therein after the Respondent's 2nd

Amended Statement of Claim now being complained of had

been filed and served on the Appellants.

Learned counsel referred to NDAYAKO Vs. DANTORO &

ORS [2004] 8 MJSC Pg.163 at 188-189, Paras. D - A

and SHELL PET. DEV. CO. NIG. LTD Vs. EDAMKUE &

ORS [2009] Vol. 7 MJSC Pg.194 at 212, Paras. A - D

and urged

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this Court to hold that where a party fails to complain

about any irregularity within a reasonable time and before

taking further steps in the proceedings, such a party is

taken to have condoned the irregularity and therefore

waived his right to object. Counsel further submitted that

even if this Court finds that the 2nd Amended Statement of

Claim is void for failure to affix NBA stamp and seal; the

Respondent's counsel can still apply to affix his stamp and

seal to the said documents and that the Written Deposition

which was the process relied upon by the Court in reaching

its decision as well as the 1st Amended Statement of Claim

and other processes can still sustain the judgment. Counsel

cited A./E. E. G. S. Vs. EKE SPIFF [2009] Vol. 2 (Pt.II)

Pg.61 at 86, Paras. A - G and YAKI Vs. BAGUDU

(Supra) to submit that justice must not only be done but

must manifestly be seen to be done. Learned Counsel urged

this Court to resolve this issue in favour of the Respondent.

In reply to the Respondent's submissions on this issue,

learned counsel for the Appellants submitted that by

relying on YAKI Vs. BAGUDU (Supra), the Respondent

had admitted that its process was irregular. Counsel

referred to

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ONAFOWOKAN Vs. WEMA BANK PLC [2011] 12

NWLR (Pt.1260) Pg. 24 SC to further submit that issue of

stamp and seal can be raised at any time and that the issue

of stamp and seal goes beyond just affixing it anytime but it

is to be shown and demonstrated whether the counsel is

licensed to practice for the year of filing the process and if

he could not satisfy the Court on this point, the trial Court

ought to discountenance the process.

Learned counsel submitted that the Respondent cannot

affix his stamp at this stage because that would amount to

a party amending his pleadings at the Appellate Court.

Counsel urged this Court to discountenance the arguments

of the Respondent on this issue and resolve this issue in

favour of the Appellants.

ISSUE 2

Learned counsel for the Appellants argued that the learned

trial judge ignored the Appellants' contention that the

entire claims in the suit by the Respondent were caught up

by issue estoppel; rather the Court narrowed down the

question of issue estoppel to prayer 2 only. Counsel argued

that all the claims/reliefs sought by the Respondent rest on

Prayer 2 which still points to the fact that the suit/claims

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ought to have been dismissed on grounds of issue estoppel.

Learned counsel referred to the findings of the Lower

Court at page 1152 and 1164, Vol. 2 of the Records of

Appeal to submit that the Lower Court having found that

prayer 2 was caught up by issue estoppel ought to have

dismissed the entire claims. Learned counsel relied on the

decisions in OSHOBOJA Vs. AMIDA & 2 ORS [2009] 12

(Pt.II) Pg.128-129, Paras. 5- 20 & 977; NKANU & ORS

Vs. ONUN & ORS [1977] 5 SC 13; IYAJI Vs. EYIGEBE

[1987] 3 NWLR (Pt.61) Pg. 523 and BAMGBEGBIN

Vs. ORIARE [2009] 13 NWLR (Pt.1158) Pg. 388,

Paras. B - E. Counsel also argued that the 3rd Appellant

and the Respondent were the same in Suit No.ID/24/07 and

that the Account No. 36000025Q in which claims/reliefs (i)

and (ii) are premised were already subject of a final

decision of the Lower Court in Suit No.ID/24/07 tendered

before the Lower Court as Exhibit C, at pages 941 - 979 of

Vol.2 of the Records of Appeal.

Learned counsel further submitted that when the

Respondent's claim in respect of sums deducted from the

Account No. 36000025Q in Suit No.ID/24/07 failed, the

Respondent in an attempt to have a second bite

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at the cherry included claims in respect of the same

Account No. 36000025Q in the instant suit. Counsel urged

this Court to resolve this issue in favour of the Appellants

and set aside the decision of the Lower Court on the

ground that the cardinal issue that culminated into this

appeal has been decided upon and the litigant should not

be allowed to re-litigate on the same subject matter.

Responding to the submission of learned Counsel for the

Appellants, learned Counsel for the Respondent submitted

that, this issue brings to fore the questions whether a

finding of estoppel in favour of the 3rd Defendant would

avail the 1st and/or 2nd Defendant in the instant suit and

whether a party who is being sued as a disclosed principal

of an erstwhile servant, who is a nominal party in the

instant suit, can successfully plead a judgment obtained by

that erstwhile servant in another suit, in his personal

capacity as estoppel - where the suit against the erstwhile

servant was prosecuted against him in his personal

capacity and not in any representative capacity? Learned

counsel submitted that Prayer 2 of the reliefs sought by the

Claimant/Respondent

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can easily stand and/or fall alone without affecting the rest

of the Claimant/Respondent's case and that the learned

trial Judge was right in refusing to dismiss the entire suit as

none of the other prayers or reliefs sought by the

Claimant/Respondent was contingent and/or dependent

upon the said Prayer 2.

Learned counsel submitted that the 1st and/or 2nd

Defendant cannot successfully set up a defense of issue

estoppel per rem judicatam against the Respondent by

pleading a judgment the 3rd Defendant obtained in a suit

purportedly previously prosecuted against him in his

personal capacity. Counsel submitted that the 3rd

Defendant testified before the trial Court that he

prosecuted the matter for himself and not as an agent or

proxy of the other Defendants in this matter. Learned

counsel referred to OWONIKOKO Vs. AROWOSAIYE

[1997] 10 NWLR (Pt.523) Pg.61 at 73, Paras. E - F;

Pg.74 at Para. B and submitted that the Appellants did

not make out a case for estoppel per rem judicatam at the

trial Court and neither have they placed any additional

material before this Court sufficient for the Court to make

such findings.

Learned counsel referred to EKENNIA Vs. NKAPAKARA

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[1997] 50 LRCN Pg.1224 at 1244; ADOMBA VS.

ODIESE [1990] 1 NWLR (Pt.125) Pg.178, Paras. H-C

and AGBOGUNLERI Vs. DEPO [2008] Vol. 2 MJSC 70

to further submit that for a plea of estoppel per rem

judicatam to succeed, it must be established that the

parties, or privies, the res or the subject matter of

litigation, and the claim or the issue in both the present and

the previous action relied upon are the same. Counsel also

cited IYAJI Vs. EYIGEBE (1987) NWLR (Pt.61) 523 at

533; OKE Vs. ATOLOYE [1985] 1 NWLR (Pt.15) 241 at

260; YOYE Vs. OLUBODE & ORS (1974) 1 All NLR

(Pt.2) 118 and IDOWU ALASHE & ORS Vs. SANYA

OLORI-ILU [1965] NMLR 66 to submit that the

Appellants failed both at the trial Court and before this

Court to discharge the burden of proof which lies on them

to establish that the parties, subject matter and issues in

the previous suit are the same with those in this suit in

which the plea of estoppel per rem judicatam was raised.

Learned counsel for the Respondent relied on USMAN Vs.

KUSFA [1992] 8 NWLR (Pt.258) Pg.247 at 253, Paras.

F - H; ODADHE Vs. OKUJENI [1973] 11 SC 343;

ALHAJI ODUMOSU & ANOR Vs. OLUWOLE & ANOR

[2004] FWLR

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(Pt.191) Pg.1628 at 1651; OKONKWO Vs. CCB NIG.

PLC 6 NWLR (Pt.507) Pg. 438-439, Paras. H - C4B

[Sic]; and Section 173 of the Evidence Act, 2011 to submit

that a party seeking to rely on estoppel per rem judicatam

must tender the record of proceedings in respect of the

earlier decision and that in the instant case the Appellants

failed to do so. Counsel contended that it is not enough to

merely plead a previous substantive suit as a counter-claim

in another suit and that to merely assert in an affidavit is

not enough to prove estoppel per rem judicatam. Counsel

submitted further that the party seeking to rely on the

defense must plead relevant facts clearly supporting the

defense and must state the purpose for which the plea of

estoppels per rem judicatam is being raised and that there

is no evidence before the Court to prove the defense.

Learned counsel argued that Exhibit X was wrongly

admitted in evidence and urged this Court to expunge same

from the Records of the Court. Counsel urged this Court to

resolve this issue in favour of the Respondent.

In the Reply brief learned counsel for the Appellants said

the Account No. 36000025Q was brought to fore

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by the Respondent in Suit No.ID/24/2007 when the

Respondent filed a Counter-claim that certain money was

missing in his account and that, when the Counter-claim

was dismissed, he amended his claims to re-ventilate his

allegations with regards to Account No. 36000025Q.

Counsel referred to OJO & 3 ORS vs. OLAWORE & 5

ORS [2008] 6 – 7 SC (Pt.11) 54 to submit that once an

issue has been decided, it cannot be re-litigated upon.

Learned counsel further cited OSHOBOJA Vs. AMIDA

[2009] 18 NWLR (Pt.1172) Pg. 209, Paras. E - H and

BWACHA Vs. IKENYA [2011] 3 NWLR (Pt.1235) Pg.

633, Paras. B - D to submit that the entire claim of the

Respondent rested on the alleged money missing from

Account No. 36000025Q and that since the Court had

dismissed the claim, the entire suit ought to collapse

without more.

Learned counsel further referred to Order 18, Rule 4 (1) &

(2) of the Court of Appeal Rules and OLANIYAN Vs.

ADENIYI [2007] 3 NWLR (Pt.1020) 1 to urge this Court

to expunge the arguments in paragraphs 10.0 - 22.0 of the

Respondent's Brief on the ground that the Respondent has

not filed a Respondent's Notice or Cross Appeal and

therefore cannot

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attack the judgment of the Lower Court. Counsel again

urged this Court to resolve this issue in favor of the

Appellants and to discountenance the submissions of the

Respondent.

ISSUE 3

Learned counsel for the Appellants contended that the

Respondent's claims/reliefs were founded on negligence

and fraud. Counsel referred to the Respondent's claims at

pages 1032 - 1033 of Vol.2 of the Records of Appeal and

argued that the Respondent did not lead any scintilla or

credible evidence to support his allegation of negligence

nor did he plead any particulars as required by law to

establish his claims. Learned counsel referred to

AGBONMAGBE BANK LTD Vs. C.F.A.O [1966] 1 SCNL

367; OYIDIOBU Vs. OKECHUKWU [1972] 5 SC

Pg.191; ORHUE Vs. NEPA [1998] 7 NWLR (Pt.557)

and P.I.P.C SECURITY LTD Vs. GEORGE VLACHOS &

ANOR [2008] 4 NWLR (Pt.1076) 1 at 16-17 to submit

that for a claimant to succeed where his case is founded on

negligence, the particulars of negligence must be pleaded

and particularized and the Claimant must show explicit

evidence of negligence.

Learned counsel further referred toA.G LEVENTIS (NIG)

PLC vs. AKPU [2007] 17 NWLR (Pt.1063) Pg.

435-436,

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Paras. H – A and UDUATUONU Vs. ANAMBRA STATE

GOVERNMENT [2010] 12 NWLR (Pt.1217)

Pg.438-439,Paras. H - C to submit that the learned trial

Judge failed to consider the authorities cited before the

Lower Court and the principles therein. Counsel further

referred to the Appellant's final Written Address at pages

1019 - 1021 of Vol. 2 of the Records of Appeal to submit

that the Lower Court abandoned and failed to consider the

issue of fraud raised by the Appellant. Learned counsel

cited AJANAKU Vs. WILLIAMS [2009] 3 NWLR

(Pt.1129) Pg.617 CA; ACTION CONGRESS Vs. JANG

[2009] 4 NWLR (Pt.1132) Pg.472; EGHAREVBA Vs.

OSAGIE [2009] 18 NWLR (Pt.1173) Pg.299 SC;

ABUBAKAR Vs. YAR'DUA [2008] 19 NWLR (Pt.1120)

Pg. 1SC; M.M.A INC Vs. N.M.A [2012] 18 NWLR

(Pt.1333) Pg.506 SC and ILOEGBUNAM Vs. OBIORA

[2012] 4 NWLR (Pt.1291) Pg.405 CA to submit that

where an issue has been raised before the Court, it is the

duty of the judge to pronounce on it one way or the other.

It was further argued by learned Counsel for the Appellant

that the allegations of mismanagement, tampering,

interfering, and conversion of money made by the

Respondent are all tainted with criminal colorations and

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the standard of proof required is that of proof beyond

reasonable doubt. Learned Counsel relied on Sections

135(1); 138 and 139 of the Evidence Act; BALONWU

Vs. EMORDI [2010] 1 NWLR (Pt.1174) Pg.91, Paras. F

- G and AGBALLAH Vs. CHIME [2009] 1 NWLR

(Pt.1122) Pg.429-430, Paras. H-G. Learned counsel

further referred to paragraphs 31(c), 33 (b) & [d] and35 (d)

of the 2nd Amended Statement of Claim at pages 1030 -

1032 of Vol. 2 of the Records of Appeal to submit that the

Respondent alleged fraud against the 1st and 3rd

Appellants but failed to substantiate or provide proof

beyond reasonable doubt as required by law. Learned

Counsel urged this Court to resolve this issue in favor of

the Appellants against the Respondent.

In his Response to Appellant's submissions, learned counsel

for the Respondent submitted that the learned trial Judge

did not hold that particulars of fraud or negligence were

not necessary for the case of the Respondent (Claimant) to

succeed against the Appellant, rather what the learned trial

Judge held was that the Claimant/Respondent presented

credible evidence to show clearly that the Defendant was

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negligent in that it failed to take reasonable care in

managing the Claimant's account and that the facts of

negligence properly pleaded in the various paragraphs of

the Statement of Claim were sufficient to establish the

claim. Counsel submitted that the judgment is in line with

the Supreme Court decisions in OKWEJIMINOR Vs.

GBAKEJI [2008] 5 NWLR (Pt.1079) 217; MAKWE Vs.

NWUKOR [2001] 14 NWLR (Pt.733) 356; IFEANYI

CHUKWU (OSONDU) CO. LTD Vs. AKHIGBE [1999]

11 NWLR (Pt. 625) 1 and A.G LEVENTIS Vs. AKPU

[2007] 9 MJSC 134.

Learned counsel further cited AGBANELO Vs. UNION

BANK OF NIGERIA [2000] 4 SC (Pt.1) 243 to argue

that the law has established a legal standard expected

between a banker and customer and that the Lower Court

rightly held that a bank has a duty to exercise reasonable

care and skill in carrying out banking business in relation

to its customers. Counsel contended that the conduct of the

Appellant bankers and their staff was intentionally,

wantonly, and willfully disrespectful of the rights of the

Respondent and that the Appellants did not act towards the

Respondent in good faith. Learned counsel referred to

NASIR Vs. CSC KANO STATE [2010] Vol. 2 MJSC and

UNION BANK OF

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NIGERIA PLC. Vs. EMOLE delivered on December 14th

2001 in SC.96/1995 to further submit that where the bank

debits the account of its customer with amounts arising

from wrong calculations by the bank, it would be inferred

that the bank acted in breach of the duty it owed the

customer to keep a proper and accurate account for the

customer.

Learned counsel for the Respondent referred to LLYODS

BANK LTD Vs. MARCAN (1973) 1 NWLR 339 to argue

that "defraud" as used by the Lower Court is imbued with a

"contemporary modern ordinary meaning" which means an

act actually involving deceit or dishonesty. Counsel further

submitted that the circumstances of the instant case bring

it within the exception in negligence cases where the rule

as to particularization is exempted particularly as the 1st

and 2nd Defendants have not given any evidence to bring

them within the exemption contemplated under the Bills of

Exchange Act, LFN 2004. Learned counsel referred to

Section 92 of the Bills of Exchange Act and BON Vs.

MAIDAMISA [1997] 10 NWLR (Pt.525) Pg.408 at 412,

Para. C to contend that a thing is deemed to be done in

good faith where it is in fact done honestly.

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Counsel submitted that the onus is on the banker to prove

that its action comes within the exceptions created by law.

In Reply to the Respondent's submissions, learned counsel

for the Appellants submitted that the Respondent's action

was founded principally on negligence and that fraud was

pleaded against the 1st and 3rd Defendants. Counsel

referred to P.I.P.C SECURITY LTD Vs. GEORGE

VLACHOS & ANOR (Supra) to submit that the

Respondent is required to plead particulars of each

allegation and to prove his case beyond reasonable doubt.

Counsel argued that OKWEJIMINOR Vs. GBAKEJI

(Supra); MAKWE Vs. NWUKOR (Supra) and IFEANYI

CHUKWU (OSONDU) CO. LTD Vs. AKHIGBE (Supra)

relied upon by the Respondent and the Lower Court were

contrary to the more recent decisions of the Supreme Court

in DIAMOND BANK PLC Vs. P.I.C LTD [2009] 18

NWLR (Pt.1172) Pg. 89-90, Paras. H-B and

ABUBAKAR & ANOR Vs. JOSEPH & ANOR [2008] 5-6

SC (Pt.11) Pg.146, Paras. H - C.

Learned counsel for the Appellant further submitted that

the attempt by learned Counsel for the Respondent to give

the word "defraud" a civil coloration contradicts

paragraphs 31

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[a] & [c] and 33 [d] of the 2nd Amended Statement of Claim

at pages 1030 – 1032 of Vol. 2 of the Records of Appeal.

Counsel submitted that the Respondent cannot retract from

the weighty allegations of crime in his pleadings at this

stage. Learned counsel further relied on M.M.A INC Vs.

N.M.A (Supra) and EZENWA Vs. OKO & 2 ORS [2008]

1-2 SC 1 to again urge this Court to resolve this issue in

favor of the Appellants.

ISSUE 4

Submitting on this issue, learned counsel for the Appellants

argued that by the provisions of Section 417 of the CAMA,

the Respondent ought to have sought for and obtained the

leave of Court before proceeding against the 1st Appellant.

Counsel referred to pages 868 - 869 & 981 of Vol. 2 of the

Records of Appeal to submit that there was evidence before

the Lower Court that a dissolution order had been made

against the 1st Appellant. Learned counsel contended that

the issue of liquidation of the 1st Appellant and the fact

that it was taken over by the 2nd Appellant is trite and

notorious and having been brought to the Lower Court's

attention, it became mandatory for the Respondent to

comply with provisions of the law.

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Learned counsel referred to AGRO ALLIED DEV. ENT.

LTD. Vs. MV NORTHERN REEFER & 2 ORS [2009] 12

NWLR (Pt.1155) Pg.270, Paras. D - F and submitted

that the failure by the Respondent to obtain the leave of

Court to proceed against the 1st Appellant amounts to

proper parties not being before the Court and the Lower

Court ought not to have adjudicated on the suit. Counsel

urged this Court to resolve this issue in favor of the

Appellants and to allow the appeal.

Learned Counsel for the Respondent submitted that the

case of the Respondent did not fall within the scope of

Section 417 of CAMA. Learned counsel referred to pages

939 - 940 & 980 - 981 of Vol.2 of the Records of Appeal to

argue that the Appellants adduced evidence before the trial

Court that the 1st and 2nd Appellants had, as joint

petitioners, approached the Federal High Court and sought

that the 1st Appellant be dissolved without being wound up

and that any legal proceedings by or against the 1st

Appellant be maintained and continued by or against the

2nd Appellant.

Learned counsel submitted that the Federal High Court

granted the prayers and by that order, the need to seek

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leave of the Federal High Court to proceed against the

Appellants becomes obviated. Counsel added that the

proceedings did not entail receivership and for winding up

contemplated under Section 417 of CAMA and that the 1st

Appellant was not wound-up but dissolved after a merger

with the 2nd Appellant. Learned counsel concluded that the

entire appeal is in bad faith and urged that this issue be

resolved in favor of the Respondent.

In the Reply brief, learned counsel for the Appellants

contended that the Court can take judicial notice of the fact

that Afribank (Nigeria) Plc has ceased to exist; that it was

bought over by the 1st Appellant and that after a while,

during the pendency of the instant suit, the 2nd Appellant

took over the 1st Appellant's assets and liabilities. Counsel

argued that the Respondent being aware of these facts

ought to narrow down his claims to the 2nd Appellant alone

rather than misleading the Lower Court to enter judgment

against the 1st Appellant that has ceased to be in

operation. Learned counsel submitted that Section 417 of

CAMA is applicable, and urged this Court to resolve this

issue in favor of the Appellants.

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RESOLUTION

ISSUE 1

The first issue to resolve in this appeal is "Whether or not

the Judge was right to have relied on the writ of summons

and 2nd amended statement of claim having found out that

the same was voidable and not invalid, yet failed to order

the Respondent to regularize his position". The contention

of the Appellants is that the Lower Court ought to have

ordered the learned Counsel for the Respondent to

regularize his process by affixing his stamp in order to

bring the process into conformity with the rules and that by

affixing the stamp and seal of another counsel to the

Written Address filed on the 23rd February, 2016, the

Respondent's counsel confirms the conclusion that the

Respondent's Writ of Summons and Statement of Claim

were prepared and signed by a non-legal practitioner or a

person not registered to practice or use the NBA stamp and

seal as at the 8th day of December, 2015 when the Writ

was dated or at any time at all in 2015 or 2016.

Learned Counsel for the Respondent argued that the

Appellants' having failed to complain on time and having

taken further steps in the proceedings are deemed to have

waived the failure to affix NBA stamps and

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seals.

The provisions of Order 10(1) of the Rules of Professional

Conduct, 2007 are clear having provided that "A lawyer

acting in his capacity as a legal practitioner, legal officer or

adviser of any Governmental department or Ministry of any

corporation, shall not sign or file a legal document unless

there is affixed on any such document a seal and stamp

approved by the Nigerian Bar Association." The import of

this Rule when read together with Order 10 (2) & (3) of the

Rules of Professional Conduct, 2007 is that documents and

processes filed by a legal practitioner must bear the

Nigerian Bar Association (NBA) approved stamp and seal of

the legal practitioner, or of one of the legal practitioners

listed on such document or process. The argument herein

however is: what is the effect of failure to comply with the

provision of Order 10 [1] of the Rules of Professional

Conduct, 2007?

In resolving this question, I will have recourse to the

decision of the Supreme Court in SENATOR BELLO

SARAKIN YAKI (RTD) & ANOR Vs. SENATOR ATIKU

ABUBAKAR BAGUDU & ORS (2015) LPELR-25721

(SC) relied upon by both parties in this appeal, the

Supreme Court per NGWUTA

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JSC at Pg. 6-8, Paras. A to E held as follows and I quote:

"What is the consequence of a legal document signed

and filed in contravention of Rule 10 (1) of the Rules?

The answer is as provided in Rule 10 (3) to the effect

that "...the document so signed or filed shall be

deemed not to have been properly signed or filed." It

is my humble view that the legal document so signed

and/or filed is not null and void or incompetent like

the case of a Court process signed in the name of a

corporation or association (even of lawyers) ... The

document in terms of the rule, is deemed not to have

been properly signed or filed, but not incompetent as

the 2nd Respondent assumed. It has been signed and

filed but not properly so signed and filed for the

reason that the condition precedent to its proper

signing and filing had not been met. It is akin to a

legal document or process filed at the expiration of

the time allowed by the rules or extended by the

Court. In such cases, the filing of the process can be

regularized by extension of time and a deeming order.

In the case at hand, the process filed in breach of

Rule 10(1) can be saved and it's signing and filing

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regularized by affixing the approved seal and stamp

on it. It is a legal document improperly filed and the

fixing of the seal and the stamp would make the filing

proper in law. Since this was not done, the Court

cannot take cognizance of a document not properly

filed and the filing not regularized.”

Therefore, following the provisions of Order 10 [1] of the

Rules of Professional Conduct, 2007 and the decision of the

Supreme Court, the effect of the 2nd Amended Statement

of Claim filed by the Respondent herein without the

approved NBA stamp and seal is that it is voidable until

remedied or regularized by affixing the NBA stamp and seal

of the legal practitioner who filed it in the first place.

Learned Counsel for the Respondent raised one

fundamental point in his address, he submitted that, on the

24th day of November, 2015, learned Counsel for the

Appellants cross-examined the Respondent extensively on

the said voidable process, and only raised the issue of

competence of the process in his written address dated 7th

January 2016, learned Counsel therefore urged this Court

to hold that the Appellants waived their right to object to

the competence

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of the process. The learned Counsel contended that the

competence of the process is an issue of law and can be

raised at any time.

I think this issue is no longer a subject matter of any

jurisprudential controversy, any issue relating to

competence of process must be raised timeously otherwise

it will be taken that the irregularity is condoned and the

right of the party to object to the competence of the

process will be deemed as having been waived. It is clear

from the records that the Appellants herein erected their

defense on the defective process, actively took part in

generating evidence at the trial, I think it is too late for the

Appellants to raise any objection touching on the failure by

the learned Counsel to affix his stamp and seal, the law

takes it that they have waived their right.

At page 1149 of Vol. 2 of the Records of Appeal that the

learned trial Judge held as follows "…such documents are

deemed not to have been properly signed and not that

they are invalid, such documents are redeemed and

made valid by a simple directive by the judge or the

relevant authority at the filing of the voidable

document

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for erring counsel to affix stamp and seal as provided

for... I hold that the process is voidable and not

invalid and can be relied on by the Court."

The settled position of the law is that, where a party in

litigation receives and acts upon a defective process, and

takes active part in generating evidence on such defective,

irregular and voidable Court process, he is deemed to have

condoned the defect and therefore waived his right to

challenge the competence of the process he cannot be

heard to grumble afterwards, the party must take

responsibility for his slumber and indolence. In the recent

decision of the Supreme Court in HERITAGE BANK

LIMITED Vs. BENTWORTH FINANCE (NIG) LIMITED,

SC.175/2005 DELIVERED ON THE 23RD DAY OF

FEBRUARY 2018, the Supreme Court per EKO JSC, held

as follows:

"The facts of this case, particularly on this objection

are that in spite of the fact that the statement of

claim was allegedly not signed by a known legally

qualified Legal Practitioner, but by a firm of legal

practitioners, the Appellant as the defendant

condoned the defective process. They participated in

the proceedings and the evidence arising from the

statement of claim was called

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after the statement of claim was filed. Judgment of

the trial Court based on the evidence elicited from

the statement of claim was delivered without

objection. Even at the Court of Appeal no issue was

made of the alleged defective statement of claim. The

Appellant, as the defendant, had clearly condoned the

defective statement of claim and waived his right to

object to the defective process. The right of the

defense to object to the irregularity ex facie the

statement of claim is a waivable right, being a private

right A.G. KWARA & ANOR Vs. ADEYEMO (supra),

ARIORI Vs. ELEMO (1983) 1 SC 13. This issue,

accordingly cannot be resolved for the Appellant.

The instant case is similar to the above instance, the

Appellant took active part in generating evidence from the

defective process, and did not raise the issue until when

final written addresses were filed, judgment was eventually

delivered, I will take it that the Appellants have voluntarily

and willfully condoned the proceedings and therefore

waived their right to challenge the irregularity in the 2nd

amended statement of claim filed by the Respondent. This

issue is therefore resolved in favour of the

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Respondent against the Appellants.

ISSUE 2

The second issue for determination is "whether or not the

learned trial Judge ought not to have dismissed the matter

having made a finding that prayer 2 of the claim was

caught up with issue estoppel but refused to dismiss the

entire claim?" The Appellants' contention is that the entire

claims in the suit by the Respondent were caught up by

issue estoppel and that all the claims/reliefs sought by the

Respondent rest on Prayer 2 and that when the

Respondent's claim in respect of sums deducted from the

Account No. 36000025Q in Suit No. ID/24/07 failed, the

Respondent in an attempt to have a second bite at the

cherry included claims in respect of the same Account No.

3 6000025Q in the instant suit. On the other hand,

Respondent contended that Prayer 2 of the reliefs sought

by the Claimant/Respondent can easily stand and/or fall

a l o n e w i t h o u t a f f e c t i n g t h e r e s t o f t h e

Claimant/Respondent's case and that the trial Judge was

right not to have dismissed the entire suit because none of

t h e o t h e r p r a y e r s o r r e l i e f s s o u g h t b y t h e

Claimant/Respondent was contingent and /or dependent

upon the said Prayer 2.

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I have carefully read the decision of the learned trial Judge

at pages 1149 -1153 of Vol. 2 of the Records of Appeal on

the issue of estoppel and I am in agreement with the

decision of the learned trial Judge. At page 1147, the

learned trial Judge itemized the claims of the Claimants as

contained at pages 1032-1033 of Vol. 2 of the Records of

Appeal and in determining whether the reliefs sought are

caught up by estoppel in the face of the judgment in Suit

No:ID/24/2007 which was tendered before it as contained

at pages 947 - 979 of Vol. 2 of the Records of Appeal. The

learned trial Judge came to the conclusion that the 1st and

2nd Appellants are not parties in Suit No.ID/24/07 and that

the claims against them are sustainable but that, the claim

against the 3rd Appellant in respect of his dealings with the

Account No. 36000025Q was subject of the final decision of

the Lower Court in Suit No: ID/24/2007 and therefore

struck out prayer No. 2. The learned trial judge held as

follows:

"Prayer i and iii which relates to the 1st defendant

was not determined in ID/24/07 as the 1st defendant

was not a party in that case. Prayer (i) and (iii) are

therefore not

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caught by the plea as parties are different and issues

not dealt with in ID/24/07. The plea of estoppels fails

in respect of the issues in prayer (i) and (iii).”

The foregoing findings of the Lower Court are in accord

with the settled position of the law. Prayer 2 of the

Respondent's claim in the instant suit as contained at pages

1032 of Vol. 2 of the Records of Appeal borders on the 3rd

Respondent's tampering with the Respondent's account

No.36000025Q and same was made an issue in Suit No:

ID/24/2007 between the 3rd Appellant and the Respondent

and in the judgment of the Lower Court in the said Suit No:

ID/24/2007, the Court determined the issue against the

Respondent. It is therefore not permissible by the principle

of issue estoppel for the same issue which borders on the

3rd Appellant's dealings or tampering with the Respondent

to be re-litigated in the instant suit. See OSUNRINDE &

AJAMOGUN [1992] NWLR (Pt.246) 156; (1992)

LPELR-2819 (SC) Pg.39, Paras. B - C where the

Supreme Court held as follows:

“It is trite that where a Court of competent

jurisdiction has settled, by a final decision, the matter

in dispute

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between the parties neither party or his privy may re-

litigate that issue again by bringing a fresh action.

The matter is said to be res judicata..."

See also BWACHA Vs. IKENYA & ORS [2011] 3 NWLR

610; (2011) LPELR-8105 (SC) Pg.20-21, Paras. C - G;

GBEMISOLA Vs. BOLARINWA & ANOR (2014)

LPELR-22463 (SC) Pg. 21-23, paras. B - A; APC Vs.

PDP & ORS (2015) LPELR-24587 (SC) Pg.116. Paras.

B - D; AJISEGIRI Vs. SALAMI & ORS (2016) LPELR-

40567 (CA) Pg.16, Paras. B - F and AMAZU & ORS Vs.

IRE & ORS (2017) LPELR- 42784 (CA) Pg.29-30,

Paras. F – E.

Having found that the one of the issues before it has been

determined in a final decision in a previous suit before the

Lower Court, the learned trial judge was right to have

struck out the Respondent's prayer 2. The question now to

be resolved is whether the entire suit ought to have been

struck out alongside Prayer 2. Where one or more of the

several relief(s) sought in a suit is not grantable or has

been determined in a previous suit as it is in the instant

case, the affected reliefs will be rightly struck out without

necessarily striking out the entire suit where there are

other reliefs

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which can survive on their own without the incompetent

reliefs that had been struck out. See: FIRST BANK OF

NIGERIA PLC & ORS Vs. A.G. FEDERATION (2013)

LPELR-20152 (CA) Pg. 56, Paras. A - C. I am of the view

that the decision reached by the learned trial Judge on this

point is unassailable, this issue is therefore resolved in

favor of the Respondent against the Appellants.

ISSUE 3

The third issue to determine is "Whether or not the Judge

was r igh t when she he ld tha t par t i cu lars o f

negligence/fraud were not necessary for the case of

Respondent (claimant) to succeed against the Appellants

herein in a matter that was founded on fraud and

negligence." The Appellant contended that for a claimant to

succeed where his case is founded on negligence, the

particulars of negligence must be pleaded and

particularized and the Claimant must show explicit

evidence of negligence and that the allegations of

mismanagement, tampering, interfering, and conversion of

money made by the Respondent are all tainted with

criminal colorations and the standard of proof required is

proof beyond reasonable doubt. The Respondent on the

other hand argued that the circumstances of the instant

case

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bring it within the exception in negligence cases where the

rule as to particularization is exempted and that the

Appellant bank failed in its duty as a banker and acted in

breach of the duty it owed the customer to keep a proper

and accurate account for the Respondent customer.

Learned Counsel for the Respondent also argued that what

the trial Judge held was that the Claimant/Respondent

presented credible evidence to show clearly that the

Defendant was negligent because it failed to take

reasonable care in managing the Claimant's account and

that the facts of negligence properly pleaded in the various

paragraphs of the Statement of Claim were sufficient to

establish the claim.

The law is settled that where negligence is alleged in an

action, full particulars of the alleged negligence must be

stated and proved by cogent and reliable evidence in

support of the particulars of negligence alleged. It is not

sufficient to merely make blanket and open-ended

allegations of negligence. In A.G LEVENTIS (NIG) PLC

vs. AKPU [2007] 17 NWLR (Pt.1063) 416; (2007)

LPELR-5 (SC) relied upon by both parties in this appeal,

the Supreme Court at Pg.15,

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Paras. C - D per OGBUAGU JSC held that: ''it is firmly

established that a party who alleges negligence

should not only plead the act or acts of negligence,

but should also give specific particulars..." See

also DIAMOND BANK PLC Vs. P.I.C LTD [2009] 18

NWLR (Pt.1172) Pg.67 SC; (2009) LPELR-939(SC)

Pg.19 Paras. B-D; ABDULLAHI & ANOR Vs. ESTHER

MAMZA (2013) LPELR-21964 (CA) Pg.41-42, Paras. B

- B and WAEC Vs. MEKWUNYE (2016) LPELR- 40350

(CA) P9.26, Paras. B - E.

In the instant case, the Lower Court considered the issue

"whether the Claimant established negligence against the

defendant?" at pages 1153 - 1164 of Vol.2 of the Records of

Appeal and concluded that "The claimant in this case has

presented credible evidence to show clearly that the

defendant was negligent in that it failed to take reasonable

care in managing the claimant accounts." The learned trial

judge at page 1155 of the records held as follows:

"In paragraphs 14 of the 2nd amended statement of

claim the claimant averred that he discovered certain

anomalies amongst which were questionable and

unauthorized transactions detailed in the statement

of account and then in paragraphs 15 -31 he

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stated the different questionable and unauthorized

transactions and averred that he suspected the 3rd

defendant of mismanaging and manipulating his

account.

There are paragraphs showing the deference of

negligence in the pleadings of the claimant.

The claimant called witnesses who gave evidence in

respect of the averments in his pleadings."

The learned trial Judge then went further to consider all

the exhibits placed before the Court and concluded as

follows at page 1162 of the records of appeal:

"There is nothing to show that these exhibits was

[Sic] credited into the account as per the statement

of account before this Court.

On the evidence of the witnesses the learned counsel

for the claimant argued that the claimant showed by

unimpeachable evidence that he made cash and

cheque deposits in the sum of N5,899,592,80 which

were not credited into his account and pay slips and

tellers are evidence of payment as held by the

Supreme Court…

He submitted that the claimant also gave evidence of

certain unauthorized debit transactions totaling

N13,235,689.80 and there was no evidence to the

contrary. He argued that payment of

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unauthorized endorsement is failure to obey the

customers mandate and he is liable to the true owner

of the account…

He submitted that the defendant have not produced

the instrument mandating them to use funds in the

claimant account to purchase bank drafts for third

parties who are still alive and could not have been

called as witnesses and that good faith in S.92 of the

Bills of Exchange Act requires that it be done

honestly.

The learned counsel for the defendant could not

effectively in his address counter these arguments.

The claimant has clearly provided credible evidence

of payments made into the accounts which were not

credited and debit and credits on the same

instruments severally.”

The Appellants have not put anything before this Court to

show that the findings and evaluation of evidence by the

Lower Court partly reproduced above is perverse or has

occasioned a miscarriage of justice. It is well settled

principle of law that unless the findings of facts by a trial

Court are patently perverse and cannot reasonably be

supported by the evidence adduced at the trial, an

appellate Court will not ordinarily disturb or interfere

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with such findings, this is so because it is the trial Court

that had the opportunity of seeing the witnesses and

watching their demeanor. See NWOBODO Vs. ONOH &

ORS [1984] All NLR 1; (1984) LPELR-2120 [SC] Pg.

37-38, Paras.G-C; MAINAGGE Vs. GWAMMA [2004]

14 NWLR (Pt.893) 323; (2004) LPELR-1822 (SC) Pg.

16-17, Paras, F - A; CPC Vs. INEC & ORS (2011)

LPELR-8257 (SC) Pg. 92-93, Paras. F - B; FRN Vs.

DAIRO & ORS (2015) LPELR-24303 (SC)

Pg.48-49,Paras. D - C and FALEYE & ORS Vs. DADA &

ORS (2016) LPELR-40297 (SC) Pg.55-56, Paras. E – D

where the Supreme Court per SANUSI ISC held that:

"It must be emphasized here and it is even settled

law, that an appellate Court does not as a matter of

practice or law interfere where trial Court

unquestionably evaluates and justifiably upraises the

facts. The reason for this practice is because it is the

trial judge who takes down relevant evidence.

Thereafter, when writing his ruling or judgment and

the trial judge weighs the evidence in the

surrounding circumstances of the case. That is called

evaluation. When evaluation of evidence is properly

done, the findings of that trial Court are difficult

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to be faulted by any appellate Court…"

Finally, in determining this issue, let me restate that I have

carefully considered the 2nd Amended Statement of Claim

contained at pages 723 and 1025-1033 of Vol. 2 of the

Records of Appeal as well as the evaluation and findings of

facts by the learned trial Judge as contained at pages 1153

-1164 of Vol.2 of the Records of Appeal and I am of the view

that the particulars of negligence alleged by the

Respondent against the Afribank Plc were pleaded and

evidence was led in proof of the particulars. The evaluation

of the evidence by the Lower Court and the conclusion

reached have not been shown to be perverse or to have

resulted in a miscarriage of justice against the Appellants

in the circumstances, this Court will not therefore interfere

with the decision of the Lower Court on this issue. This

issue is therefore resolved in favor of the Respondent

against the Appellants.

ISSUE 4

The last issue to determine in this appeal is "Whether or

not the failure of the Respondent to seek and obtain leave

of Court before proceeding with case at the High Court was

not fatal to his case." On this issue, the

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Appellants argued that by the provisions of Section 417 of

the CAMA, the Respondent ought to have sought for and

obtained the leave of Court before proceeding against the

1st Appellant because there was evidence before the Lower

Court that a dissolution order had been made against the

1st Appellant who was taken over by the 2nd Appellant.

The Appellants added that the Respondent ought to have

narrowed down his claims to the 2nd Appellant alone

rather than misleading the Lower Court to enter judgment

against the 1st Appellant that ceased to be in operation.

The Respondent contended that the case of the Respondent

did not fall within the scope of Section 417 of Companies

and Allied Matters Act and that the Appellants adduced

evidence before the trial Court that the 1st and 2nd

Appellants had, as joint petitioners, approached the Federal

High Court and applied that the 1st Appellant be dissolved

without being wound up and that any legal proceedings by

or against the 1st Appellant be maintained and continued

by or against the 2nd Appellant. Learned Counsel for the

Respondent added that the need to seek for leave of the

Federal High Court to proceed against

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the Appellants was not necessary since the proceedings did

not entail receivership and/or winding up contemplated

under Section 417 of CAMA and that the 1st Appellant was

not wound up but dissolved after a merger with the 2nd

Appellant.

Exhibit W was tendered by the learned Counsel for the

Respondent and was not objected to by the Appellants

counsel and same was admitted by the Lower Court.

Exhibit W is the Order of the Federal High Court in Suit.

No. FHC/L/CS/567/15 and found at pages 868-869. The

Appellants' counsel referred to this document in their

Appellants Brief. In the said Order of the Federal High

Court Orders 4 and 5 clearly state as follows:

“4. AN ORDER dissolving the 2nd Petitioner without

being wound up:

5. AN ORDER directing that any legal proceedings by

or pending against the 2nd Petitioner be maintained

and continued against by or against the 1st

Petitioner.”

The 1st Appellant herein is the 2nd Petitioner in Suit.

No.FHC/L/CS/567/15 while the 2nd Appellant herein is the

1st Petitioner in the said Suit. No: FHC/L/CS/567/15. The

Appellants' counsel was aware of the Petition by the 1st

and 2nd which led to the

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Order of the Federal High Court. The Order was tendered

before the Lower Court, the Appellant did not object to it.

The Appellants' counsel referred to the said Order to argue

that the 1st Appellant has been dissolved. Learned Counsel

for some inexplicable reasons chose to ignore the

conspicuous and unequivocal orders of the Federal High

Court to the effect that:" any legal proceedings by or

pending against the 2nd Petitioner" (1st Appellant)

"be maintained and continued by or against the 1st

Petitioner" (2nd Appellant).

The Order of the Federal High Court is valid and subsisting

until set aside on appeal by a Court of competent

jurisdiction. See AJAO & ORS Vs. ALAO & ORS [1986]

NWLR (Pt.45) 802; (1986) LPELR-285 (SC) Pg.73,

Paras. A - B where the Supreme Court held that: "It is

well settled that judgment of a competent Court

subsists and is binding until set aside on appeal, or by

other judicial proceeding..." I cannot but agree with the

submissions of learned Counsel for the Respondent that the

Order of the Federal High Court obviates the necessity to

seek leave of the Federal High Court and that the 1st

Appellant was not

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wound-up but "dissolved without being wound up". No

liquidator was appointed over the 1st Appellant. In the

circumstance therefore, this issue is also resolved against

the Appellants and in favour of the Respondent. On the

whole therefore, this appeal is devoid of a particle of merit

and therefore deserves to be and is hereby dismissed by

me. The judgment of the Lower Court delivered by Oke-

Lawal (Mrs.) on the 30th day of September, 2016 in Suit

No: LD/782/2005 is hereby affirmed.

Cost of N100,000.00 is awarded to the Respondent against

the Appellants.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been

privileged to read in advance the draft of the lucid

judgment just delivered by my learned brother

TIJJANI ABUBAKAR JCA, and I am in complete agreement

with the reasoning as marshaled out and the impeccable

conclusions reached therein and which I hereby adopt as

mine. I shall in view of the fundamental issue of waiver of

voidable defect in process and not necessarily void process

in the light of the Rule in Okafor v. Nweke (2007) 10

NWLR (Pt.1043) 521, say a word or two in support of the

illuminating lead judgment.

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It appears to me that while the Rule in Okafor V. Nweke

remains immutable as the extant law and leaves no room

for any waiver where the Court process is void, the rigours

of the said rule as regards Court process which is not void

but merely voidable has been mitigated with the advent of

the dec is ion o f the Supreme Court in Appeal

No.SC/175/2005:Heritage Bank Limited V. Bentworth

Finance Nigeria Limited, unreported judgment delivered

on 23/2/2018 per Eko JSC., a very welcome development in

the law, in my humble opinion, to meet the ends of justice

so that a party who is aware of mere irregularity in a Court

process but proceeds with the proceedings to its conclusion

is not allowed to take benefit of the Rule in Okafor V.

Nweke to void in its entirely the proceedings in which he

had voluntarily and fully participated without any prompt

complaint before the trial Court.

It is thus also my view that in the instant appeal the

Appellant has only himself to blame having without any

complaint and voluntarily of his own volition fully

participated in the entire proceedings of the Court below

cannot in justice and in good conscience be allowed to turn

around to challenge the validity of the same proceedings.

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I too resolve this issue against the Appellant. I therefore,

join my learned brother in dismissing the appeal and shall

abide by the consequential orders made in the lead

judgment.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I read in

draft the comprehensive leading judgment of my learned

brother, Tijjani Abubakar, JCA, which has just been

delivered.

The issues framed for determination have been

exhaustively reviewed and insightfully resolved. The

manner of resolution of the issues are in accord with my

views. I therefore adopt the reasoning and conclusion in

the leading judgment as mine, without nothing more to

add.

I equally dismiss the appeal and abide by the consequential

orders contained in the leading judgment, inclusive of the

order as to costs.

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Appearances:

E. B. Omoboriowo For Appellant(s)

C. E. Alletor For Respondent(s)

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