Polaris Bank Limited & Anor V. Raphael Igoh Uwonu (2000)

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ONYEKACHI AJA OTISI, J.C.A.

 This appeal was lodged against the decision of the High Court of Benue State, sitting in Makurdi, delivered on September 30, 2009, by J. S. Ikyegh, J. (as he then was) in Suit No. MHC/98/2006.

The facts leading to the appeal, in summary, are as follows: Sometime in 2005, the 1st Appellant observed that there had been unauthorized withdrawals from sundry accounts of customers of 1st Appellant’s Gboko Branch. It was alleged that there were anomalies and irregularities in the way and manner in which Respondent, who was a cashier with 1st Appellant’s Gboko Branch, was handling his teller transactions and operations. As a result, the 1st Appellant issued the Respondent with two queries. The Respondent did not respond but rather wrote a letter resigning his appointment with 1st Appellant. The Appellants lodged a complaint to the B Division Police Station, at Gboko, Benue State. In the course of the investigation, the Respondent made a written undertaking to refund the monies involved to 1st Appellant. However, without refunding the said monies, the Respondent as plaintiff,

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instituted action at the lower Court against the Appellants as defendants seeking reliefs set out in a Further Amended Statement of Claim. The Appellants in their Amended Statement of Defence denied the Respondents claims and also filed a Counterclaim against Respondent. Hearing commenced on 29/7/2009 with the Respondent testifying as PW1. The Appellants Counsel at the lower Court, R.S.M. Adebayo, Esq., commenced cross-examination of PW1 and the matter was adjourned for continuation of proceedings. On the next date, 30/9/2009, Mr. Adebayo did not continue with the cross examination of PW1 but rather informed the lower Court that, pages 257 -258 of the Record of Appeal:
In view of my answer to question 9 on the PTC sheet we concede salaries as pleaded in paragraph 27 (a) (i) – (v) but we do not concede gratuity because Plaintiff is still in the employment of the Defendant bank and false imprisonment, defamation and general damages for torture and mental anguish as the criminal case is still pending.”

Based on this concession, the learned trial Judge entered judgment in favour of the Respondent. Aggrieved by the said judgment, the

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Appellants lodged the instant appeal by Notice of Appeal filed on 7/5/2014 which was amended twice. The Further Amended Notice of Appeal, which was filed on 14/11/2018 but deemed properly filed and served on 14/5/2019, was on two grounds of appeal.

In line with the Rules of this Court, parties filed Briefs of Argument. The Appellants filed a Further Amended Brief on 14/11/2018 but deemed properly filed and served on 14/5/2019. The Respondents Brief, in which a Preliminary Objection was argued, was filed on 1/3/2019 but deemed properly filed and served on 14/5/2019. The Appellants Amended Reply Brief was filed on 14/11/2018. At the hearing of the appeal on 14/5/2019, the Briefs were respectively adopted by F.M. Ebofuame-Nezan, (Mrs.) with Chima Chibuzo, Esq. for the Appellants, and, by B.I. Shehu, Esq. for the Respondent. As is customary, the Preliminary Objection shall first be considered.

Preliminary Objection
The Respondent contended that the Grounds of Appeal raised by the Appellants were incompetent and ought to be struck out as they did not emanate from the judgment of the lower Court appealed against. It was submitted

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that the Grounds of Appeal were predicated on the issue of a consent judgment which had nothing to do with the judgment of the lower Court. It was argued that the judgment of the lower Court was not a consent judgment but a judgment based on the admission and concession by the Appellants through their counsel. On what constitutes a consent judgment, learned Counsel relied on Adedeji v. Oloso (2007) 5 NWLR (PT. 1026) 133 at 189; J.I.C. Ltd v. R.L. Import-Export (1988) 7 SCNJ P. 104-105. Counsel to the Appellants had admitted the claims of the Respondent in Paragraph 27 (a) (i)-(v) of the Further Amended Statement of Claim and denied other claims of the Respondent while Counsel to the Respondent asked for judgment based on the admission of the Appellants. The lower Court thereupon entered judgment. It was submitted that claims admitted require no further proof and that the trial Court had the power to give judgment based on such admission, relying on Chukwu v Akpelu (2014)13 NWLR (PT. 1424) 359 at 387.  In this circumstance, the Court is not required to ask parties to file any terms of settlement. The decision in S. & D Const: Co. Ltd. v Ayoku (2011) 13

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NWLR (PT. 1265) 487 at 505 was cited and relied on.
It was submitted that where grounds of appeal do not relate and stem from the judgment appealed against, the said grounds of appeal are incompetent and liable to be struck out or dismissed. Reliance was placed on Apapa v I.N.E.C. (2012) 8 NWLR (PT. 1303) 409 at 425; Popoola v. Babatunde (2012) 7 NWLR (PT 1299) 302 at 330; M.B.N. Plc v Nwobodo (2005) NWLR (PT. 945) 388.