UNITED BANK FOR AFRICA PLC v. GBADEYAN (RTD) & ORS (2018)

In The Court of Appeal of Nigeria

On Thursday, the 5th day of July, 2018

CA/IL/117/2016

Before Their Lordships

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria


Between

UNITED BANK FOR AFRICA PLC –Appellant

AND

1. HON. JUSTICE J. F. GBADEYAN (RTD)
2. KOREDE INTEGRATED VENTURES LTD
3. MR. SEUN AKANNI –Respondents

…………………….A…………………….

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the decision/Ruling of Hon. Justice I. B. GARBA of the High Court of Kwara State delivered in ILORIN on the 3rd November, 2016.

By a Writ of Summons and Statement of Claim filed on 22/01/2014, the 1st and 2nd Respondents as Claimants claimed from the Appellant and 3rd Respondent as Defendants as follows:-
I. A MANDATORY ORDER of the Court directing the 1st Defendant to pay the Claimants the sum of N1.4 Million (One Million, Four Hundred Thousand Naira) being the principal amount fraudulently withdrawn from the 1st Claimant’s Account by the 2nd Defendant, Mr. Seun Akanni an employee of the 1st Defendant at UBA Oja-Oba Branch, Ilorin.
II. 25% interest on the said N1.4 Million (One Million, Four Hundred Thousand Naira) with effect from the 1st day of March, 2012 up till Judgment date, and 10% on the Judgment sum until full liquidation.
III. N20,000,000.00 (Twenty Million Naira) general damages for breach of contract, loss of revenue occasioned by the defendants??? action, distress and embarrassment caused to the Claimants by the defendants, particularly the 1st Claimant given his standing in the society.
Pleadings were filed and exchanged by the parties.

The case of the 1st and 2nd Respondents as Claimants is that the 1st and 2nd Respondents operate two separate Accounts with the Appellant’s in its Branch Office at Oja-Oba, Ilorin.
The 1st Respondent is a retired High Court Judge and operates a personal Account with the name, Gbadeyan Joseph Fola with Account Number: 1001456151 and also 2nd Respondent operates a Company’s Account in the name of Korede Integrated Ventures Limited with Number: 1015847048. The 1st Respondent is the Chairman and Chief Executive Officer of 2nd Respondent.
The 1st Respondent had in his personal account a total sum of (Twelve Million, Nine Hundred and Fifty – Two Naira, Seventy – Seven Kobo) (N12,952,422.77K) as at 2nd of February, 2012. He instructed the bank to transfer and deposit the sum of N12.9M (Twelve Million, Nine Hundred Thousand Naira) to his Company’s account, (Korede Integrated Ventures Ltd) by three separate cheques issued out by him dated 3rd February, 2012 for the sums of N5M (Five Million Naira), and N2.9M (Two Million, Nine Hundred Thousand Naira) with cheques numbers 32471251, 32471252 and 32471253 respectively.
The Respondents were astonished to know later that whilst the sum of N12.9Milllion was debited to the 1st Respondent’s personal account vide the aforesaid three cheques, the company’s account (2nd Respondent) was credited with the sum of N11.5Million, leaving a deficit of N1.4million unpaid into the account. The 1st Respondent is aware that it was the 3rd Respondent, Mr. Seun Akanni (employee of the – Appellant), who is the Bank’s Account Officer attached to the Respondents’ accounts that effected the said transfer.
The 1st Respondent was shocked by this fraudulent act and immediately complained in writing to the Bank’s Branch Manager who thereafter visited the 1st Respondent in his office in company of another officer of the bank and after a meeting with him, promised to regularize/rectify the company’s account in the sum of N12.9 Million as debited from his personal account.
When in June 2012 nothing was heard from Appellant and 2nd Respondent’s Account was not credited in the deficit/stolen sum of N1.4 Million, the Respondents instructed their solicitors to write 1st Appellant and also reported the matter to the police. Thus, through police investigation, it became known that the 3rd Respondent who is the officer officially assigned by the Appellant as the account officer for the said two accounts fraudulently stole the N1.4 Million from 2nd Respondent’s account by paying N11.5 Million instead of N12.9 Million. The 3rd Respondent who confessed to the police of stealing the N1.4 Million from 2nd Respondent’s account while effecting the transfer in the course of his official duty with Appellant was later charged to Court via FIR.
All promises made to the Respondents by the Appellant to pay the N1.4 Million have not been fulfilled up till now thereby causing loss of revenue in the Respondent’s business, embarrassment and emotional discomfort. The action is brought against the Appellant and the 2nd Respondent after the Appellant failed to fulfill its promise to the Respondents.
The Appellant as 1st Defendant on the other hand pleaded that the 1st Respondent has not shown that it complied with the procedure of transferring money from the Account of the 1st Respondent to the 3rd Respondent. That the 1st Respondent personally made a cash withdrawal of the sum of N12,900,000.00 (Twelve Million, Nine Hundred Thousand Naira) from his Account and never officially transferred or applied to the Appellant to transfer the said sum of money.

…………………….B…………………….

The Appellant denied it ever promised to pay any sum of N1.4 Million back into the 1st Respondent’s Account. That the criminal case before the Magistrate Court in which the 3rd Respondent was charged with theft of N1.4 Million from the 1st Respondent’s Account has been pending since 2012 and that the 1st and 2nd Respondents and the 3rd Respondent have agreed to settle the case.
That the 3rd Respondent has in fact paid five installments to the tune of N200,000.00 (Two Hundred Thousand Naira) only to the Registry of the Magistrate Court as at February 2014.
The Appellant further pleaded that the 1st and 2nd Respondents decided to sue the Bank when money was not forthcoming from the 3rd Respondent. And, that Appellant is not a necessary party to this Suit.
On 12th day of March, 2015, learned Counsel for the Appellant as 1st Defendant/Applicant brought a motion as below praying amongst other things that the name of the Appellant (1st Defendant) be struck out from the Suit as it was improperly joined to the Suit.
The Appellant’s Motion on Notice as contained on Pages 51-52 of the Record of Appeal reads thus:
1. AN ORDER of this Honourable Court striking out the case of the Claimants/Respondents against the 1st Defendant/Applicant as this Honourable Court has no jurisdiction to entertain the claim against the 1st Defendant/Applicant.
2. AN ORDER of this Honourable Court striking out the name of the 1st Defendant from this Suit as it was improperly joined to this Suit.
3. AN ORDER of this Honourable Court striking out the name of the 1st Defendant/Applicant from this Suit as the 1st Defendant/Applicant which was not joined to the case before an Ilorin Magistrate Court in the criminal trial cannot be joined to the present civil Suit; AND
4. FOR such Order or further Orders as this Honourable Court may deem fit to make in the circumstances.
TAKE FURTHER NOTICE that at the hearing of this Application, the 1st Defendant/Applicant shall rely on all the Court 
processes already filed in this Suit.
DATED this 12th day of March, 2015.
In a Ruling based on the said Motion on Notice, the learned trial Judge considered the prayer of the Appellant 1st Defendant to strike out its name from the Suit as not being a proper and necessary party that should have been joined in the Suit and concluded at Page 124 of the Record that:
A critical view of the above, no doubt will lead to an irresistible conclusion that the issues involved in this suit cannot be effectually and completely determined in the absence of the applicant/1st defendant and I so hold.
Also, the fact that the applicant/1st defendant was not charged along with the 2nd defendant as a co-accused at the Magistrate Court does not diminish her role as earlier highlighted in this ruling and such cannot be a criterion to justify the striking out of the name of the applicant/1st defendant.
Consequently upon the above, I refuse to strike out the name of the applicant/1st respondent from this suit, as such request lacks merit. The application of the applicant/1st defendant is accordingly dismissed.

Dissatisfied with the above, the Appellant filed a Notice of Appeal containing nine (9) Grounds of Appeal in this Court on 15/11/2016.
The relevant Briefs of Argument for the Appeal are as follows:-
i. Appellant’s Brief of Argument dated and filed on 20/01/2017. It is settled by E. T. ADEYEMI, Esq.
ii. 1st and 2nd Respondents Brief of Argument dated 23/03/2017 and filed on 18/04/2017 but deemed filed on 03/05/2018. It is settled by Kamaldeen QUADRI, Esq.
iii. Appellant’s Reply Brief of Argument dated and filed on 17/05/2018. It is settled by Adebayo ADEDIJI, Esq.

Learned Counsel for the Appellant nominated three (3) Issues for determination. They are:
1. Whether the Appellant is not a necessary party to the instant suit and it was improperly joined to the suit and its name ought to have been struck out of the suit (Grounds 2, 5, 6, 8 and 9). 

2. Whether the learned trial Judge was legally wrong to have delved into the substantive suit in his ruling delivered on 3rd November, 2016 and thereby making far reaching findings of fact and conclusions in a case where evidence have not been held. (Grounds 1 and 7).
3. Whether the learned trial Judge was wrong to have dismissed the uncontested application of the Appellant. (Grounds 3 and 4).

…………………….C…………………….

Learned Counsel for the 1st and 2nd Respondents on the other hand formulated a sole Issue for determination of the Appeal. It is:
Whether having regard to the role of the 3rd Respondent in the transaction leading to this action in his capacity as a staff of the Appellant at the material time, the Appellant is not a proper party and liable to the 1st and 2nd Respondents in the Suit.”
On Issue One, learned Counsel for the Appellant submitted that it is not in dispute that the 3rd Respondent was charged before an Ilorin Magistrate Court for the offence of theft. That it is clear from Exhibit D, the First Information Report (FIR) at the Magistrate Court that the Appellant was not charged to Court as co-accused in the Magistrate Court. But, that the Appellant was only joined as a co-defendant to this suit which was filed two years after the case before the Magistrate Court was instituted.
He submitted that the Appellant was/is not vicariously liable for the act of the 3rd Respondent and that was why the Appellant was not joined as a co-accused to the case at the Magistrate Court. That an employer (in this case the Appellant) cannot be liable for a confessed criminal act of an employee (the 3rd Respondent) more so when the 3rd Respondent had accepted personal liability and has started repaying the 1st and 2nd Respondents the money he allegedly collected from the 1st and 2nd Respondents.
He submitted that joining the Appellant to this suit is an abuse of process of the Court because the two cases are claiming same money from the Appellant and 3rd Respondent at the same time.
He submitted that the instant case is tantamount to obtaining double compensation first from the Magistrate Court and second from the trial Court. The Courts, he said frown on double compensation. And, also that vicarious liability of an employer does not extend to criminal acts of the employee.
He submitted that the 3rd Respondent was not acting within the scope of employment with the Appellant when he allegedly stole the money of the 1st and 2nd Respondents and that therefore the Honourable Court had no jurisdiction to entertain the case against the Appellant. After referring on the above to the cases of:
C.B.N. VS. OKONKWO (2013) 6 NWLR 385 at 386; and
GBAGBARIGHA VS. TORUEMI (2013) 6 NWLR (PT. 1350) 289 at 306. 

on the above, Appellant’s Counsel submitted on another wicket that the Appellant is not a proper or necessary party to this suit and was wrongly joined to the suit. This, he said is because the 3rd Respondent was not representing the Appellant at the time he allegedly stole the money of the 1st and 2nd Respondents and that in any event, the Appellant did not employ the 3rd Respondent to steal the alleged money of the 1st and 2nd Respondents.
Appellant’s Counsel referred to the cases of:
GREEN VS. GREEN (1987) 3 NWLR (PT. 61) 480;
YAR’ADUA AND ORS. VS. C.P.C. AND 5 ORS. (2011) 10 S.C. 7 at 37; and 38;
DANTSOHO VS. MOHAMMED (2003) 2 S.C. 42 at 45; and
OJO VS. OGBE (2007) 9 NWLR (PT. 1040) 542 (CA). 

for the meaning of a necessary party and opined that the Appellant could not by any stretch of imagination be said to be joinable to this civil suit.
Still on Issue One but yet on another leg, Appellant’s Counsel submitted that the Appellant in its Affidavit in support of its Application deposed to facts which were never challenged nor disputed. That facts not denied are deemed admitted.
He submitted that the Appellant cannot be vicariously liable for the crime which he never authorized. He referred to the cases of:
APC VS. PDP AND 4 ORS. (2015) 3 -4 SC (PT. 1) 79 at 191;
ADEOYE VS. OLORUNOJE AND 4 ORS. (1996) 2 MAC 256 at 262.

to say that It is not the law that a master is responsible for the crime of his servant and concluded on Issue One that the Appellant ought not to be joined to the suit before the trial Court.

On Issue One, learned Counsel for the Respondents reiterated the facts for the case as pleaded by the Respondents to justify the conclusion of the learned trial Judge in his Ruling that the Appellant is a necessary party to the case.
He reminded us that the Appellant assigned the 3rd Respondent the responsibility to look after the Accounts of the 1st and 2nd Respondents, and that in the course of duty, the 3rd Respondent went ahead without the consent of the 1st and 2nd Respondents to steal the sum of N1.4 Million from 1st Respondent’s Account.
That the Appellant’s Branch Manager ostensibly noting the gravity of the fraudulent act of its servant and in company of some other senior staff of the Appellant had a meeting with the 1st Respondent in his office and after the meeting, apologized for the act of their servant and promised to regularize/rectify the Account within a reasonable time but eventually failed to fulfill the said promise.
He submitted that the 3rd Respondent at the time he transferred the money as instructed by the 1st Respondent acted in his capacity as Appellant’s Bank Account Officer in the course of employment with the Appellant. That Appellant cannot deny liability for the fraudulent conduct or act of its employee done in the course of duty.
He referred to the cases of:
JAMES VS. MID MOTORS LIMITED (1978) VOL. II NSCC 536 at 550; and
NATIONAL BANK OF NIGERIA VS. TRANS ATLANTIC SHIPPING AGENCY (1996) 8 NWLR (PT. 468) 511 at 519 -520.
To say that a bank is vicariously liable vide its servant where there has been non-compliance and failure to strictly adhere to the banking regulations.”

…………………….D…………………….

He added that the Appellant’s Supporting Affidavit to the Motion on Notice in the Court below did not contradict the pleadings that as at the time the 3rd Respondent committed the fraud against the 1st and 2nd Respondents, he, 3rd Respondent was the Accounts Officer attached by the Appellant to the 1st and 2nd Respondents Accounts.
Respondents Counsel relied on the above stated facts to justify the conclusion of the learned trial Judge that the Appellant is a necessary party who ought to be joined as a party  Defendant in the Suit filed by the 1st and 2nd Respondents as Claimants.
I do agree with the learned Counsel for the Respondents and indeed the learned trial Judge that the Appellant is a necessary party in the Suit instituted by the 1st and 2nd Respondents.
At Pages 123-124 of the Record of Appeal, the learned trial Judge enumerated factors, grounds and circumstances that are discernible from the available record of the case as showing indispensable role played by the Applicant/1st Defendant (Appellant) in the events that culminated into the institution of the suit.”They are:
1) It is the applicant/1st defendant that employed the 2nd defendant as her staff.
2) The 2nd defendant was in the employment of the 1st defendant as at the time of the commission of the offence and not in his personal banking business.
3) It is through the hands and actions of its staff, officials and employees that the activities, instructions and responsibilities of the applicant/1st defendant were/are carried out. Put in another way, the 2nd defendant was an agent of the applicant/1st defendant.
4) The two bank accounts of the claimants were opened with the applicant/1st defendant.
5) It is also the applicant/1st defendant who employed the 2nd defendant that assigned him as the Account Officer to the two accounts of the Claimants.”

There is no doubt from the above facts elicited from the pleadings and other processes filed in the suit that the presence of the Appellant is necessary for the effectual and complete adjudication of the questions involved in the suit filed by the 1st and 2nd Respondents.
Simply put, a necessary party to a case is a person whose presence is necessary for the effectual and complete adjudication of the questions involved in the cause or matter.See:
O. K. CONTACT POINT LIMITED VS. PROGRESS BANK PLC (1999) 5 NWLR (PT. 604) 631 (CA);
B.O.N. LIMITED VS. SALEH (1999) 9 NWLR (PT. 618) 331 (CA); and
MOBIL OIL PLC VS. D.E.N.R. LIMITED (2004) 1 NWLR (PT. 853) 142 (CA).
A necessary party to a suit is a party who is not only interested in the subject matter of the proceedings but also a party in whose absence the proceedings could not be fairly dealt with. Consequently, without his being a party to the suit, the Court may not be able to effectually and completely adjudicate upon and settle all questions involved in the suit.

See:
OJO VS. OGBE (2007) 9 NWLR (PT. 1040) 542 (CA); and
BIYU VS. IBRAHIM (2006) 8 NWLR (PT. 981) 1 (CA).
From all indications, a necessary party is not just any person but must be one against whom a link relating to a cause of action must be sustained.

In JIDDA VS. KACHALLA (1999) NWLR (PT. 599) 426 at 432, it was held that:
A necessary party is a person, body or an institution who or which the Plaintiff or Petitioner must make a party in order to show cause of action and establish a nexus between him, and the complaint and the act complained of.”
Also, in UNION BEVERAGES LIMITED VS. PEPSI COLA INTERNATIONAL LIMITED AND ORS. (1994) 3 NWLR (PT. 330) 1 at 17, it was held that:
If a complaint is made against a person in an action and the questions or issues involved in the complaint cannot be effectually and completely determined or settled in the absence of the person, such a person is a necessary party and ought to be joined in the suit.. the purpose of joining a particular person as a party is to ensure that person is bound by the result of the action. That is the only way in which the fundamental question in the action can be effectually and completely settled or determined.
The rule is that persons against whom complaints are made in an action must be made parties to the suit.

And, the Plaintiff as the 1st and 2nd Respondents in this Appeal has a duty to bring before a Court parties whose presence are crucial to the resolution of the case otherwise the action is liable to be struck out.
See:
ADISA VS. OYINWOLA (2000) 6 SC (PART II) 47;
MOBIL OIL PLC VS. D.E.N.R. LIMITED (2004) 1 NWLR (PT. 853) 142.

In the instant case, the learned trial judge was right to have refused the Appellant’s Application that its name be struck out of the suit filed by the 1st and 2nd Respondents as the Appellant is indeed a necessary party to the said suit.
Issue One is answered in the negative and it is resolved against the Appellant.

On Issue Two, learned Counsel for the Appellant submitted that the learned trial Judge made findings that go into the substantive issue on Pages 123-124 of the Record when he held that:
The following factors or grounds and circumstances are discernible from the available record of the case as showing indispensable role played by the applicant/1st defendant in the events that culminated into the institution of this suit.
1) It is the applicant/1st defendant that employed the 2nd defendant as her staff.
2) The 2nd defendant was in the employment of the 1st defendant as at the time of the commission of the offence and not in his personal banking business.
3) It is through the hands and actions of its staff, officials and employees that the activities, instructions and responsibilities of the 
applicant/1st defendant were/are carried out. Put in another way, the 2nd defendant was an agent of the applicant/1st defendant.
4) The two bank accounts of the Claimants were opened with the applicant/1st defendant.
5) It is also applicant/1st defendant who employed the 2nd defendant that assigned him as the Account Officer to the two accounts of the Claimants.

…………………….E…………………….

He submitted that the learned trial Judge ought not to delve into the substantive suit at the Interlocutory stage and that with the above findings of the trial Court, the learned trial Judge has already concluded the suit before it against the Appellant.
He referred to the case of UMA VS. EFFIOM (2014) ALL FWLR (PT. 731) 1628 at 1650 and submitted that delving into the substantive suit by making findings at the Interlocutory stage occasioned a miscarriage of justice.
On Issue Two, I do not agree with the learned Counsel for the Appellant that the learned trial Judge by eliciting facts from the pleadings of the parties delved into the substantive matter at the Interlocutory stage. All the learned trial Judge did was to bring out facts from the pleadings and processes of the parties especially that of the 1st and 2nd Respondents Claimants to convince himself that the Appellant is indeed a necessary party to the suit filed by the 1st and 2nd Respondents as those facts on record show the Respondents cause of action against the Appellant and establish a nexus between the complaint of the Respondents and the factual allegations against the Appellant.
Issue Two is answered in the negative and resolved against the Appellant.
On Issue Three, Appellant’s Counsel submitted that the Respondents did not file any Counter Affidavit and Written Address against the Appellant’s Application that led to the Ruling appealed against. There is no contrary facts and evidence to counter the depositions in the Affidavit in support of the Appellant’s Application.
He submitted that facts in the Affidavit in support of an Application which are not controverted are in law deemed to be admitted.
He referred to the cases of:
A.G., PLATEAU STATE VS. A.G., NASARAWA STATE (2005) NWLR (PT. 930) 421 at 431; and
ADEJUMO VS. AYANTEGBE (1989) 3 NWLR (PT. 110) 417.

He submitted that in the absence of a Counter Affidavit, the learned trial Judge has no evidential basis for making far reaching conclusions showing that the Appellant is rightly joined to the suit.
He referred to the case of DAVID O. UCHIV AND ANOR VS. PIUS SABO (2016) 16 NWLR (PT. 1538) 264 at 322 to say that the learned trial Judge’s decision is perverse as he ought not in the circumstances of the case dismissed the Appellant’s Application to strike out the Appellant’s name from the suit.
On Issue Three, learned Counsel for the Respondents submitted that the Court still has the discretionary power to grant or refuse the prayers in the Appellant’s Motion on Notice having regard to averments and reliefs in the 1st and 2nd Respondents Writ and Statement of Claim.
He submitted that the fact that the Appellant was not joined by the Police in the criminal prosecution against the 3rd Respondent is not a material fact to exonerate the Appellant to answer to the fraud committed by its agent who was attached to the 1st and 2nd Respondents as their Account Officer while the 3rd Respondent was still in the service of the Appellant.
Finally, that as a matter of law, criminal and civil proceedings could be instituted simultaneously on the same set of facts as the purposes of the proceedings are different in law.
I think the first pertinent point to note in relation to Issue Three is that the learned Counsel for the Appellant was wrong to have imagined that the learned trial Judge could not in addition to the Appellant’s Affidavit in support of its Motion on Notice rely on materials on record in the pleadings of the parties especially in the Writ of Summons and Statement of Claim of the Respondents Claimants to determine the jurisdictional question of whether or not the Appellant is a necessary party to the suit. Indeed, where the jurisdiction of a Court over a suit is challenged directly or indirectly, frontally or collaterally, the Court is entitled under Section 6 of the 1999 Constitution to consider the Plaintiff’s claim before it in order to decide, whether it has jurisdiction to entertain it.
See:
ADELEKE VS. O. S. H. A. (2006) 16 NWLR (PT. 1006) 608;
EGBEBU VS. I. G. P. (2006) 5 NWLR (PT. 972) 146 at 162.
Furthermore, it is trite law that in considering whether a Court has jurisdiction to entertain a matter, the Court is guided by the claim before it by critically looking at the Writ of Summons and the Statement of Claim.

See:
GAFAR VS. GOVERNMENT, KWARA STATE (2007) 4 NWLR (PT. 1024) 375;
ONUORAH VS. K. R. P. C. (2005) 6 NWLR (PT. 921) 393;
TUKUR VS. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517;
NKUMA VS. ODILI (2006) 6 NWLR (PT. 977) 587;
A.G., LAGOS STATE VS. DOSUNMU (1989) 3 NWLR (PT. 111) 552;
NNONYE VS. ANYICHIE (2005) 2 NWLR (PT. 910) 623.

In the instant case, there is nothing in the Appellant’s Affidavit in support of its Motion on Notice that is not already revealed or contained in the pleadings filed by the parties and on record of the Court.
For this reason alone, a Counter Affidavit by the Respondents to the Appellant’s Motion on Notice would not have made any difference to the trial Judge’s consideration of the factual averments in the pleadings of the parties especially the Respondents Writ of Summons and Statement of Claim in determining the jurisdictional issue of whether or not the Appellant is a necessary party in the case.

…………………….F…………………….

There is in fact authority for the proposition that a party does not need a Counter Affidavit to counter meaningless or useless facts.
See: ODUTOLA VS. PAPERSACK COMPANY LIMITED (2006) 8 NWLR (PT. 1012) 470.

Finally, it seems to me and as pointed out by the learned Counsel for the Respondents that Paragraphs 4(d) to (i) of the Appellant’s Supporting Affidavit in support of the Motion on Notice actually support the case of the 1st and 2nd Respondents.
The Paragraphs read as follows:-
4(d) That immediately the 2nd Defendant was reported to the 1st Defendant the 2nd Defendant left the services of the 1st Defendant.
(e) That the 1st Defendant/Applicant was not joined as a co-accused in the aforesaid criminal case.
(f) That the accused in the above criminal case is sued in this suit as the 2nd Defendant.
(g) That an employee is never employed by an employer to commit theft or stealing.
(h) That stealing is not within the scope of employment of the 2nd Defendant with the 1st Defendant.
(i) That the 1st Defendant is not responsible for the acts of the 2nd Defendant who was reported by the Claimants to have 
committed the offence of theft…
In all the circumstances of the case, the learned trial Judge was right even in the absence of a Counter Affidavit by the Respondents to have dismissed the Appellant’s Motion on Notice and to hold that the Appellant is a necessary party to the suit instituted by the 1st and 2nd Respondents.
Issue Three is answered in the negative and resolved against the Appellant.

Having resolved the three Issues in this Appeal against the Appellant, the Appeal lacks merit and it is accordingly dismissed.

There shall be costs of Thirty Thousand Naira (N30,000.00) to be paid by the Appellant to the 1st and 2nd Respondents.
CHIDI NWAOMA UWA, J.C.A.: I was privileged to have read in advance the draft copy of the judgment of my learned brother, MOJEED ADEKUNLE OWOADE, JCA. I am at one with the decision that the appeal lacks merit for the reasons given by my learned brother. I also dismiss it and abide by the order made as to costs in the leading judgment.
BOLOUKUROMO MOSES UGO, J.C.A.: I was privileged to read in advance the lead judgment of my learned brother Mojeed Adekunle Owoade, JCA, and I am in complete agreement with him on his reasoning and conclusion. First, the pith of appellant’s complaint that it was not a necessary party to 1st and 2nd respondents’ action and so deserved to be struck out from their suit revolve around matters it had already joined issues with them in its defence already filed in that Court. There was therefore no need for the interlocutory application it filed to compel the lower Court to, as it were, it to decide in limine those same issues on affidavit evidence. The proper course was for the trial to proceed on the issues joined and a decision then given. See Tigris v. Ege (1991) 10-12 S.C. 64 @ 79 where the apex Court (Ogundare, J.S.C.) had this to say:
“Surely where a defendant is disputing an averment of fact made in a statement of claim. the proper way to do so is not by filing an application to have the plaintiff’s action dismissed in limine but to file a defence traversing that averment of fact and establishing evidence at the trial on which the trial Court will make a finding for or against the plaintiff on such averment.”

It is the wrong course chosen by appellant in the Court below which the Court also ill-advisedly permitted that compelled it to make the pronouncements appellant is now unfairly complaining about. Having entertained that application at appellant’s instance, the trial judge had to do the inevitable of perusing 1st and 2nd respondents statement of claim so as to make necessary pronouncements on whether appellant was truly improperly joined as it was complaining. There is nothing wrong in that.
As for the argument about appellant not being a defendant in the earlier criminal case at the Magistrate Court and cannot properly be a party in the subsequent civil action instituted by 1st and 2nd respondents at the High Court of Kwara State, it has to be realized that those are two different actions instituted by two different persons. The State, and not 1st and 2nd respondents, instituted the criminal case and control it so it has a choice as to who to arraign on the evidence in its possession, taking into account who in its view committed acts that amounted to not just civil offences but crimes. In contradiction, success in the civil action, for torts or breach of contract, is not only instituted by and at the absolute discretion of 1st and 2nd respondents, it also requires different ingredients just as proof this time is also simply on balance of probability.
the criminal matter is the concern of the state, so to say, while the civil matter is the concern of aggrieved individual.
So it was said by this Court (Tobi, JCA, as he then was) in Veritas Insurance Co. Ltd v Citi Trust Inv. Ltd (1993) 3 NWLR (Pt. 281) 349 @ 364-365.
The difference in the right and authority to institute and control criminal and civil actions must not be confused.
For this bit and more comprehensive reasons of my brother Owoade JCA, which I here adopt, I also dismiss the appeal for lacking in merit. I abide by the order as to costs.

Appearances

Adedapomola Lawal, Esq.-For Appellant

AND

Kamaldeen Quadri, Esq. for the 1st and 2nd Respondents.

3rd Respondent was served on 06/06/2018 by pasting but absent.-For Respondent


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