Union Bank Of Nigeria Limited V. Alhaja Bisi Edionseri (1988) LLJR-SC

Union Bank Of Nigeria Limited V. Alhaja Bisi Edionseri (1988)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C.

This is an appeal by the Defendant Bank against the Judgment of the Court of Appeal, Lagos Division, delivered on the 13th Day of June, 1985. For reasons which will become obvious later in this judgment, it is not necessary to go into the details of the facts: only as much of the facts as would make this judgment intelligible need to be recounted.

The Plaintiff, Alhaja Bisi Edionseri, filed an action in a Lagos High Court claiming a declaration that the Defendant was not entitled to debit her account with the values of different cheques amounting to the sum of N550,000.00; an order directing the Defendant to pay the said sum into the Plaintiffs current account with the Defendant and damages for breach of contract.

As the Defendant did not file any defence within time after entering an appearance, the Plaintiff applied for judgment in default of defence under Order 24 Rule 11 of the High Court of Lagos (Civil Procedure) Rules, 1972. Thereafter the Defendant applied under Order 13 Rule 22 of the said Rules for leave to issue 3rd party notice on one Mr. S.O.S. Benson. It was deposed in the affidavit in support of the motion inter alia as follows:-

”2. That S.O.S. Benson now sought to be joined as a 3rd Party to these proceedings was in the employment of the Defendant Bank as an Assistant Manager at the Defendant Bank’s Branch at 40, Marina, Lagos at all times material to this case.

3. That in utter breach of trust and/or duty to render faithful and loyal service and/or in breach of duty the said S.O.S. Benson wrongly debited or wrongly caused to be debited the Plaintiffs account with a total amount of N550,000.00
4. That the Plaintiff has now instituted these proceedings to recover the said amount wrongfully debited and withdrawn from her account.
5. That the Defendant’s Bank is claiming indemnity against the said S.O.S. Benson in these proceedings”.

After two adjournments both the motion for judgment and leave to issue 3rd Party Notice came before Silva. J., on the 28th January, 1985. Although the Defendant’s motion for 3rd party Notice was filed ex parte, the learned Judge decided to hear the respondent’s counsel on it. He heard the motion for leave to issue 3rd Party Notice first, and adjourned the motion for judgment in default of defence. After hearing both counsel, he ruled, inter alia, as follows:

”I am inclined to grant the application to issue 3rd Party Notice and I do hereby grant same.

It is ordered that 3rd Party Notice be issued to the party named in the Defendant’s application. I will adjourn the motion for Judgment until a later date for hearing to allow the 3rd Party Notice enough time to be served.

I am mindful of the fact that proceedings may be delayed in view of the fact that no address of the 3rd Party is given in the Defendant’s application. If by the next ”adjourned” date the 3rd Party’s address is still not given I shall be constrained to hear and determine the application for judgment.

Motion for Judgment adjourned till 25/2/85.”

By a Notice of Appeal dated the 6th day of February, 1985, the Plaintiff appealed against the above order. The three grounds of appeal were as follows:

”1. The learned trial Judge erred in Law and exercised his discretion wrongly in ruling that the Plaintiff’s Motion on Notice for judgment in default of Defence shall be adjourned to a later date (25/1/85) when the Affidavit of Amos Oloruntoba Akanbi, an official of the Defendant Bank, was before him and it was quite clear from that Affidavit that the Defendant has no defence to this action.

2. The decision of the learned trial Judge to adjourn the Plaintiff’s application for judgment in default of Defence and to entertain and grant the Defendant’s application to join a Third Party is unreasonable and has done grave injustice to the Plaintiff.
3. The order joining the above-named Third Party is unreasonable and unwarranted having regard to the provisions of Order 13 rule 22.

Particulars

(a) The Defendant’s application to join a Third Party was based on the alleged ground ”that the Defendant’s Bank is claiming indemnity against the said S.O.S. Benson in these proceedings”.

(b) The Affidavit evidence before the Court only shows that the Defendant Bank has a right to claim damages for conversion or breach of trust and/or breach of contract of service with the Third Party. It does not show that there is a contract of indemnity as such between the Defendant Bank and the Third Party.”

Before the matter came up for hearing in the Court of Appeal, the learned counsel for the Defendant filed a number of documents which tended to show that the Defendant Bank had instituted some enquiries about the cheques and that it did appear that some of these cheques were in the hand writing of the said Mr. Benson and that others would appear to have been forged. Queries issued to Mr. Benson as well as his answers to some of them were also exhibited. Charge No.LCD/129/84 pending in the High Court of Lagos State against Mr. Benson and 3 orders on nine counts of forgery, uttering, stealing and false pretences, of various cheques and sums of money connected with the subject matter of the suit was also exhibited. The learned counsel for the Defendant also exhibited a proposed ”statement of defence”. For purposes of this judgment, it is enough to set down paragraphs 4 and 5 of the draft statement of defence. Therein, it was averred as follows:

”4. In the event of the Defendants being found liable to pay the Plaintiff the value of the said cheques as wrongfully debited to the Plaintiffs account the Defendants hereby claim to be re-imbursed by way of indemnity and/or by virtue of the fiduciary relation between the Defendant Bank and the 3rd party and by reason of the 3rd party’s breach of duty and/or confidence and abuse of office as the Respondent bank’s employee.

5. The 3rd party was at all material times an Assistant Manager at Defendant bank’s Branch at 40 Marina Lagos and in the course of his employment dealt with the Plaintiff in the operation of her said account at the said Branch and had access to the said account.”

The learned counsel for the Defendant had applied by a motion on Notice for leave that these documents exhibited be used in the appeal. The learned counsel for the Plaintiff first opposed the application, but later stated that he would not like to fall into the temptation of saying that the Court should not look into the documents. The Court of Appeal adjourned its ruling on the matter till judgment. Thereafter counsel of both sides addressed the Court in terms of their briefs which they bad filed earlier on. In a reversed judgment Ademola, J.C.A., allowed the appeal and found for the Plaintiff. He held that the Defendant had no effective defence to the action; and hence judgment in default must be entered against it. He therefore granted to the Plaintiff the declaration sought and awarded her N25,000.00 as damages for breach of contract and N350.00 as costs. Mohammed and Kutigi, JJ.C.A. concurred.

The Defendant (hereinafter called the Appellant) appealed. The Plaintiff shall hereinafter be referred to as the Respondent. I shall refer to Mr. Benson by name. Because of the course which this appeal must have to take, I do not consider it necessary to set out the grounds of appeal in full. Suffice it to say that the Appellant has seriously challenged the interpretation which the Court of Appeal has placed on Order 13 rule 22 of the High Court of Lagos State (Civil Procedure) Rules, 1972, and the view of the Court of Appeal that the statement that the Appellant’s proposed Statement of Defence did not show a bona fide defence. It was also their contention that the award of N25.000.00 damages to the respondent was arbitrary and not based on any sound principle of law. The learned counsel for the Appellant and Respondent filed their respective briefs based on the above grounds of appeal.

Later, the appeal came up for hearing before this Court. Towards the conclusion of arguments on both sides, the learned counsel for the Appellant informed the Court that the Appellant had long settled the claims of the Respondent. The Court thereafter directed both sides to give it full information on the matter and to exchange every correspondence that might be sent to the Court on the issue.

As a result of this direction, Chief Williams has written a letter dated 22nd January, 1988, and stated that the learned counsel for the Appellant, Mrs. Peter-Okoye, had not supplied the information regarding the payment of the money to the Respondent, as she had promised to do. He also attached a copy of the proceedings before the High Court in the criminal charge against Mr. Benson and 2 others which shows that Mr. Benson has been convicted on all the 14 counts of the charge, and sentenced accordingly. He stated that from Respondent’s testimony in the Criminal Court, her account with the Appellant had been credited with the amount of N550,000.00 after the judgment of the Court of Appeal. He also argued in a nutshell that as the issue of Benson’s involvement in the conversion of the respondent’s N550,000.00 had been settled, it was no longer proper to relitigate it in these proceedings, as the finding in the Criminal Court was sufficient to raise ”issue estoppel” against Mr. Benson in case he should make my attempt to deny the issues decided in that criminal case. He relied heavily on the decisions in the following cases, namely: Mcilkenny v Chief Constable (1980) p.668; Hunter v Chief Constable (1982) A.C. 525.

Chief Onyiuke has also written. By his letter (Brief) dated 16th February, 1988, he pointed out that as far back as 4th July, 1985, the appellant wrote to the respondent informing her that the account with the Appellant hank had been credited with the judgment debt of N575,350.00 and that this was duly acknowledged by the learned counsel for the Respondent (Chief Williams) by a letter dated 2nd September, 1985. In a part of the letter under reference, Chief Onyiuke wrote: ”The issues for determination in the Supreme Court are clearly set out in paragraph 10 at page 6 of the Appellant’s Brief. In substance, the question is whether the Court of Appeal correctly construed and interpreted the scope of ORDER 13 Rule 22(1)(b) and (c). The Respondent argues that the Appellant Bank has to take a separate action against Benson and that there is not issue for trial between the Appellant Bank and the Respondent. We contend that it is too narrow an interpretation of Order 13 Rule 22(1)(b) (c). We contend that the 3rd Party procedure enables the Court in one action, to determine the person on whom the ultimate loss should fall and to determine the liability between the Plaintiff and Defendants and Defendants – inter se. There is sufficient LIS to sustain the 3rd party procedure.”

In the penultimate paragraph, he continued:

”The decision of the Court of Appeal on this point will be binding on all Courts subordinate to it throughout the whole country and if the decision of the Court of Appeal on ORDER 13 Rule 22(1)(b) and (c) is wrong the sooner it was put right, it is humbly submitted, the better for the administration of justice in this country.”

Herein lies the crux of the problem in this Court in this appeal. From the totality of the materials before the Court, it does appear clear to me that the question of liability as between the Respondent and Appellant is no longer a life issue. Up till now the Appellant has not filed a defence; not even after they were served with a notice of a motion to enter judgment in default of a defence. Although that motion was adjourned by the Court of trial, the Court of Appeal, subsequently, entered judgment in default of defence. Apart from the question of N25,000.00 damages, no serious issue has been raised in the grounds of appeal set out above as to the liability of the appellant with respect to the N550,000.00.

Understandably, faced with the type of Manager which Mr. Benson has turned out to be the Appellant is quite helpless in a claim by its customer such as this. After all, like all other companies, the bank is an abstraction. It has to rely upon the integrity and honest performance of its staff, particularly its Directors and Managers who perform its day to day functions. Be that as it may, it appears to me that although a Defendant who pays the amount of a judgment debt after he has lost in the Court of Appeal may not necessarily be deemed to have foreclosed his right to pursue his appeal to the Supreme Court, it is of material significance also in this case that from Chief Onyiuke’s letter, the payment in question had been made the 4th July, 1985, before the Notice of Appeal was filed on the 6th of September, 1985 – some two months later.

Then the grounds of appeal were devoted substantially to the third party proceedings. Taking these facts together with other facts I have mentioned above, I cannot but come to the conclusion that the question of the lis between the Appellant and the Respondent is no longer a life issue. What the Appellant appears to be interested in is the third party procedure and the interpretation of Order 13 r. 22.

But this is the crux of the problem. From the contention of the learned counsel for the Appellant as reinforced by a portion of his letter quoted above, he is saying that even if the lis between the Appellant and Respondent is dead, this Court should hand down its decision on the 3rd party procedure between the Appellant and Mr. Benson. The learned counsel for the Respondent, on the other hand, has submitted in his letter that the decision in the Criminal Court and the findings against Mr. Benson raise an issue estoppel against Mr. Benson on all those findings.

There can be no doubt, in my view, that as between the Appellant and Mr. Benson the point taken by the learned Senior Advocate for the Respondent is valid. The result will be that Mr. Benson cannot be heard to try to dispute those findings should the Appellant want to institute any action against him to recover the amount of the judgment debt.

But this does not appear to me to meet the contention of the learned counsel for the Appellant in relation to the 3rd party procedure. Implicit in the contention of the learned counsel for the Appellant is this, that a 3rd party proceeding has a life of its own so that even if the lis in the main action is dead, that between the Defendant (Appellant) and the 3rd party (Mr. Benson) as to the ultimate responsibility of the latter to pay the judgment debt would still have to be decided.

In my judgment, as far as the dry bones of law go, the learned counsel for the Appellant is correct. For 3rd party proceedings have a life of their own, quite independent of the main action, so that even where the main action has been settled 3rd party proceeding already begun can still proceed. See on this Supreme Court Practice 1976, paragraph 16/1/1, at the 3rd paragraph at page 225. See also: Scott v West Yorkshire Road Car Company Limited (1971) 3 All E.R. 534, C.A. In that case, Denning, M.R., with whom Salmon and Megaw L.JJ. concurred said at p.537:

”It was said that in consequence of the settlement, the original action is dead, and being dead, there is nothing on which the third party proceedings can bite. I cannot agree with this contention. It is answered by reference to S.39(1 )(b) and (2) of the Supreme Court of Judicature (Consolidation) Act 1925 and R.S.C. Order 16, r. 4(3)(b). As I read these provisions, once the action itself is settled, the third party proceedings can proceed in just the selfsame way as if they had been started by a separate action.”

Order 13 rule 22 of the High Court of Lagos State (Civil Procedure) Rules 1972, is, in substance, the same with the English rules as at 1929. Conversely, 3rd party proceedings may be dismissed for want of prosecution even though the main action is still proceeding. See Slade & Kempton (Jewelry) Ltd. v Kayman Ltd. (1969) 3 All E.R. 786. The true effect of the service of a 3rd party notice is not that the 3rd party becomes a Defendant in the main action but it makes the 3rd party a Defendant vis-a-vis the party serving him.

See Okafor v African Continental Bank Ltd. and Widi (1975) 5 S.C. 89 at p.100; Eden v Weardale Co. (1887) 35 Ch.D.287. As it is so, once the 3rd party notice has been duly commenced, the fact that the main claim has been settled will not terminate the 3rd party notice. The final question is this: When, under our local rules, does a 3rd Party Notice commence so as to make the 3rd Party a Defendant vis-a-vis the party joining him The answer to that question turns on the interpretation of Order 13 Rule 22 of the High Court of Lagos State (Civil Procedure) Rules. Order 13 rule (1)(a) – (c) state the conditions under which the Courts or a Judge in chambers may give leave to a Defendant to issue and serve a ”third party notice.” Sub rule (2) deals with the procedure whereby leave to issue and serve may be given. Rule 23 prescribes the form of the notice and states that the notice shall ”be served within the time limited for delivering the defence …………………….. and with it shall be served a copy of the writ of summons or originating summons and of any pleadings filed in the action.” Now rule 24 concludes the point now in issue. It states:

”The third party shall, as from the time of service upon him of the notice, be a party to the action with the same rights in respect of his defence against any claim made against him and other wise as if he had been duly sued in the ordinary way by the defendant.”

Thus from the above provision of Order 13 rule 24, it is clear that it is only after the Third Party Notice has issued with leave and been served upon the third party that he becomes a Defendant vis-a-vis the party joining him. In the instant case all that has happened is that leave to issue the notice has been given by the learned trial Judge. There is nothing to show that it has issued or has been served on Mr. Benson. Indeed the learned Judge was complaining that the address for service had not been given. It is only after such a service that a lis arises between the defendant and the third party. The factual situation, therefore, is that there is yet no lis pending between the appellant and Mr. Benson.

It is from this factual situation that I have considered the submission of Chief Onyuike that as the opinion of this Court on order 13 rule 221 (b) and (c) would be not only binding but also a useful guide to all the other Courts in the land, this Court should give a decision on the point. The short answer to this is that the constitutional role of this Court as well as all other Courts established by, or under, section 6 of the Constitution of the Federal Republic of Nigeria, 1979, is to decide issues between parties in litigation. In the ipsissimi verbis of the Constitution the Courts are empowered to decide:

”…………..all matters between persons, or between government or authority or any person in Nigeria and (to) all actions and proceedings, relating thereto, for the determination of any question as to the civil rights and obligations of that person.”

So, under the Constitution there must be a lis between any of the persons named in section 6 before any of the Courts can invoke its judicial power. Conversely, when there is no lis between two parties this Court has no jurisdiction, as it cannot indulge in the luxury of a mere advisory opinion, no matter how beneficial it may be to the legal profession or the world at large. It has no constitutional power to do so. This is why this Court has consistently avoided going into purely academic question. Nnamani, J.S.C., underscored the point in Akeredolu v. Akinremi (1986) 2 N.W.L.R. (Part 25) 710 at p.725 where he said:

”It has long been established that this Court will not render an advisory opinion nor will it deal with a matter which is speculative and academic. The Court deals with life issues.”

Obaseki, J.S.C., made precisely the same point in the case of Ekperokun v The University of Lagos (1986) 4 N.W.L.R. (Part 34) 162, at p.179. For this reason, I must resist the temptation of expressing an opinion as to the correct meaning and import of order 13 rule 22, as has been urged by the learned counsel for the Appellant.

The appeal, therefore, abates as there is nothing to decide. I make no order as to costs.A. NNAMANI, J.S.C.: I had the advantage of a preview of the judgment just delivered by my learned brother, NNAEMEKA-AGU, J.S.C. and I entirely agree with his reasoning and conclusions.

The course of this appeal and the result were inevitably affected by the information that the Appellant had settled the terms of the judgment of the Court of Appeal. This information was confirmed in a letter dated 16th February, 1988 which Chief G.C.M. Onyiuke, S.A.N. sent of this Court. As per that letter, payment was made to the Respondent on 4th July, 1985. From the records of proceedings, appeal to this Court was filed on 6th September, 1985. It seems clear to me that after the 4th July, 1985 there was no more a dispute between the Appellant and the Respondent.

What then is the position of the 3rd Part Notice which was brought under Order 13 Rule 22 of the Civil Procedure Rules of the High Court of Lagos The learned trial Judge granted the application of the Appellant to issue a 3rd Party Notice on 28th January, 1985. He adjourned the other motion for Judgment till a later date for hearing ”to allow the 3rd Party Notice enough time to be served.” For reasons which will appear later. I should mention that there is nothing to show that the notice had been served by 4th July, 1985.

Order 13, Rule 24 provides that –

”the third party shall, as from the time of the service upon him of the Notice, be a party to the action with the same rights in respect of his defence against any claim made against him and otherwise as if he had been duly sued in the ordinary way by the defendant”.

It is settled that mere service of the notice does not make a person served a defendant to the main action [See Eden v Weardale Co. (1887) 35 Ch. D 287] but it makes him a defendant vis-a-vis the person serving it: African Continental Bank Ltd. v. Wadi Jalo (1975) 5 S.C. 89, 100. This agrees with Order 13 Rule 24 above. In the circumstances of this case, if the 3rd Party had been served with the Notice. he would have been a defendant visa-vis the Appellant before the 4th July, 1985 when there ceased to be a lis between Appellant and Respondent. As it is, he was not a defendant vis-a-vis the Appellant. I am in total agreement that if the Appellant had become a defendant vis-a-vis the Appellant before 4th July, 1985, the lis between them would have survived the termination of the lis between the Appellant and Respondent. In his commentary on Order 16 Rule I of the Rules of the Supreme Court in England 1965, Supreme Court Practice 1979, the author stated at paragraph 16/1/1 page 228:

”Moreover, it should perhaps be observed that third party proceedings, including contribution between co-defendants, have or may have as it were a life of their own quite independent of the main action so that if the main action is settled, third party proceedings already begun can still proceed ………Scott v West Yorkshire Road Car Co. Ltd. (1971) 3 W.L.R. 282; ……………………………

The Service of the 3rd Party Notice, and the issue of contribution between co-defendants in an appropriate case, creates a ”lis” between the parties in question which remains to be disposed of, if necessary by determination by the Court”.

The operative words here are ”already begun”. In the con of the relevant rules of court, this must be when the 3rd Party, having been served, becomes a defendant.

Chief Onyiuke in paragraph 6 of his letter under reference, raised the point that several subordinate courts would be bound by the decision of the Court of Appeal on the proper interpretation of Order 13, Rule 22. He thought this Court ought to give a decision on the issue. I am also in sympathy with this contention. I am afraid though that this Court cannot do in this case without acting outside its jurisdiction. The judicial power vested in this Court by Section 6(6)(b) of the 1979 Constitution is in relation to controversies between persons or between persons and Government. After 4th July, 1985 there was no lis between Appellant and Respondent, and for the reasons I had given, no lis had arisen between the Appellant and the 3rd Party before 4th July, 1985 and indeed, till date.

In such circumstances, such an opinion can at best be an advisory one which this Court has no Constitutional power to give. See Eperokun v University of Lagos (1986) 4 N.W.LR. pt. 34 162; Attorney-General of Ondo State v Attorney-General of the Federation and 19 Ors. (1983) Vol. 2 S.C. N.L.R. 269. Perhaps now that the Constitutional review process is on, it may be appropriate to consider the desirability of vesting this Court with power to give advisory opinions particularly in constitutional matters. It is a jurisdiction which many Courts of ultimate resort in other Commonwealth jurisdictions enjoy.

For these reasons, and the fuller reasons contained in the lead judgment, I abide by all the orders made by my learned brother, Nnaemeka-Agu, J.S.C. including the order as to costs.M. L. UWAIS, J.S.C.: I have had the advantage of reading in draft the judgment read by my learned brother, Nnaemeka-Agu, J.S.C. I agree that by the action of the appellant there is no more lis between the parties. In the circumstances of the case, it will, therefore, be merely academic to interpret, as urged by learned counsel for the appellant, the provisions of Order 13 rule 22 of the High Court of Lagos State (Civil Procedure) Rules, Cap.52 on third party procedure.

For the reasons given in the said judgment, the appeal is hereby abated with no order as to costs.

SC.81/1986