UBA PLC v. PEL

CITATION: (2017) LPELR-43202(CA)

In the Court of AppealIn the Jos Judicial Division

Holden at Jos

ON MONDAY, 12TH JUNE, 2017Suit No: CA/J/119/2015

Before Their Lordships:

ADAMU JAURO Justice, Court of AppealUCHECHUKWU ONYEMENAM Justice, Court of AppealHABEEB ADEWALE OLUMUYIWA ABIRU Justice, Court of Appeal

BetweenUNITED BANK FOR AFRICA PLC - Appellant(s)

AndMR. ZELETUS JOEL PEL - Respondent(s)

RATIO DECIDENDI

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1. APPEAL - APPEAL AS OF RIGHT: Instances where an appealshall lie as of right from the High Court or Federal High Court tothe Court of Appeal"It is furthermore important to point out that the instant appealis against a final decision of Plateau State High Court of Justicesitting as a Court of first instance not in its appellatejurisdiction. By Section 241(1) (a) of the 1999 Constitution ofthe Federal Republic of Nigeria (as amended) provides that:"An appeal shall lie from the decisions of the Federal HighCourt or a High Court to the Court of Appeal as of right in thefollowing cases:(a) Final decisions in any civil or criminal proceedings beforethe Federal High Court or a High Court sitting at first instance;..."From the above provision an appeal shall lie as of right fromthe decision of the High Court to the Court of Appeal i.e.without leave of the Court of Appeal, whether the groundsupon which the appeal is lodged are of law, or of fact or mixedlaw and fact notwithstanding."Per JAURO, J.C.A. (Pp. 10-11,Paras. D-B) - read in context

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2. BANKING LAW - BANKER-CUSTOMER RELATIONSHIP:Nature of a banker/customer relationship"A good starting point in resolving this issue is to determinewhether there exist a banker customer relationship betweenthe appellant and the respondent in their dealings. By thecombined reading of Section 61 and Section 2(1) of the Banksand other Financial Institutions Act, 1991, a 'bank' means acompany duly incorporated in Nigeria and holds a valid bankinglicense issued under this Act. The word 'banker' can be usedunchangeable with the word 'bank' as held by the FederalSupreme Court in the case of AKWULE & ORS. v. THE QUEEN(1963) pg. 191 at pg. 198, thus:"For the meaning of banker, we turn to our own law. TheBanking Act (Cap 19) does not define Banker as such, but Bankis define thus: "Bank" means any person who carries onbanking business" 'Banking' business' is defined as thebusiness of receiving money on current account from thegeneral public, of paying or collecting cheques drawn by orpaid in by and of making advances to customers (as amendedby Act No. 19 of 1962).Section 3(1) of this Act enacts 'No banking business shall betransacted in Nigeria except by a company which is inpossession of a valid licence, which shall be granted by theminister after consultation with the central bank, authorizing itto carry banking business in Nigeria. From these provisions it isclear that a bank can operate in Nigeria only by a company orbody corporate. The word 'person' in the definition of bankabove is, therefore used primarily in the sense of acorporation" A customer on the other hand is someone who hasan account with a bank. See NEW NIGERIAN BANK LTD. v.ODIASE (1993) 8 NWLR (Pt. 310) 235 at 243. While therelationship in law between a banker and its customer hadbeen that of debtor and creditor. See UBA v. UBN PCC (1995) 7NWLR (Pt. 405) 72 at 79-80. For this relationship to exist theremust be money transaction that connects banker and customerwhich arise from the nature of a contract. See NEW NIGERIANBANK LTD. V. ODIASE (supra)."Per JAURO, J.C.A. (Pp. 23-24,Paras. B-F) - read in context

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3. COMMERCIAL LAW - AGENCY: Whether an agent will bepersonally liable to repay money paid to him under a mistakeof fact"The respondent having failed to prove having deposited hismoney with the appellant within the meaning of bankingbusiness, any deposit made by the respondent other thanthrough the practice of depositing money with the appellant ispersonal to him. The position of the law on this point is clearlyenunciated by PER TAYLOR C.J. IN STANDARD BANK OFNIGERIA LTD. V. ATTORNEY GENERAL OF THE FEDERATION(1971) 2 NCLR 181 at 193-183 where he held thus: "The sameprinciple of law is stated in different in 1 Halsbury's Laws inEngland, 3rd Edition, para 522 at 233 as follows: But if a thirdperson pays money to an agent under a mistake of fact, or inconsequence of some wrongful act, the agent is personallyliable to repay it, unless, before the claim for repayment wasmade upon him he had paid it to the principal or donesomething equivalent to payment to his principal so clear is thelaw on this subject that in the case of GOWERS v. LIYOYDS OFNPF BANK (1938) 1 ALL ER. at 773; 158 LT. at 469... that wherean agent has received money paid to him by "third personunder a mistake of fact, if he still has the money in his hands itcan be received. If on the other hand, he paid it away to hisprincipal, then it cannot be recovered from the agent, and theonly remedy is to go against the principal."In the instant case, the respondent admitted to have given hismoney to Andy Igbo for depositing same with the appellantunder a mistaken believe that the said Andy Igbo was a cashierwith the appellant, since it was not established that the saidAndy Igbo paid the monies received from the respondent to hisprincipal (the appellant), the respondent has not proved havingpaid the money into his account with the appellant."Per JAURO,J.C.A. (Pp. 28-30, Paras. F-B) - read in context

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4. DAMAGES - GENERAL DAMAGES: Guiding principles for theaward of general damages"General damages are damages which the law implies orpresumes to have accrued from the wrong complained of or asthe immediate, direct and proximate result or the necessaryresult of the wrong complained of. A trial Court has thediscretionary power to award general damages and whenexercising such discretionary powers, it has the duty tocalculate what sum of money will be reasonably awarded in thecircumstance of the case. See TAYLOR V. OGHENEOVO (2012)13 NWLR (pt. 1316) pg. 46 @ 66 paras F-H, GARBA v. KUR(2013) 13 NWLR (pt. 831) and BELLO v. AG. OYO STATE (1986)5 NWLR (Pt. 45) 828. In awarding general damages, the Courtwould simply be guided by the opinion and judgment of areasonable man. General damages are loses which flownaturally from the defendants act. See IJEBU-ODE LOCAL GOVT.V. ADEDEJI BALOGUN & CO. LTD. (1991) 1 NWLR (Pt. 165)136."Per JAURO, J.C.A. (Pp. 32-33, Paras. F-D) - read in context

5. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF:Burden and standard of proof in civil cases"In civil cases, like the instant case, the burden of prove of aparticular issue rests on the party who alleges it. The ultimateburden of proving a case lies on the plaintiff in that he is theparty who will fail to obtain judgment if on the totality of theevidence adduced before the Court the balance of probabilitiesdoes not weight in his favour. See UDECHUKWU v. NGENE(1992) 8 NWLR (pt. 261) 565 at 585-586."Per JAURO, J.C.A. (P.25, Paras. B-D) - read in context

6. EVIDENCE - PROOF: How payment of money into an accountmay be proved"In proof of payment of money into bank account, the law iswell settled that the best way of proving payment of moneyinto a bank account is by production of bank teller or anacknowledgement showing on its face that the bank hasreceived the payment. See UBA Plc. v. G.S. IND. LTD. (2011) 8NWLR (pt. 1250) pg. 590 @ 621 and SALEH V. B.O.N. LTD.(2006) 6 NWLR (pt. 976) 316."Per JAURO, J.C.A. (Pp. 25-26,Paras. E-A) - read in context

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7. EVIDENCE - WITHHOLDING EVIDENCE: The presumption oflaw as to withholding of evidence where a party in possessionof material evidence in a case fails to produce it in Court"It was the contention of the respondent that the failure of theappellant to produce the original tellers after notice to producesame has been specifically requested will be taken against theappellant. He placed reliance on Section 167(c)(d) and (e) ofthe Evidence Act 2011 (as amended).In interpreting the above Section, this Court in the case of UBAPLC. V. G.S. IND. (NIG.) LTD. (supra) (a) Pg. 621- paras C-E, perLUKULO-SODIPE held:"Where a party adduces evidence that go to show theexistence of a document in proof of his case, the documentshould be tendered pursuant to the provision of Section 149(d)(now Section 167(d) of the Evidence Act, evidence which couldbe produced but is not produced is presumed to be against theinterest of the party withholding the same. In the instant case,the trial Court in the face of the failure of the appellant toproduce the documentary evidence it pleaded reliance upon inestablishing that it was on the 9/4/1996 that the respondentpaid in its draft, was very correct in invoking the provision ofSection 149(d) of the Evidence Act against the appellant." Seealso CHEMIRON INT. LTD. V. EGBUJUONUMA (2007) ALL FWLR(Pt. 395) 444; ABUBAKAR v. WAZIRI (2008)14 NWLR (pt. 1108)507. The failure to produce the original by the party servednotice to produce, gives the adverse party the opportunity totender a secondary evidence of the document. The appellantmaintained both in their pleadings and evidence that they donot have in their custody the originals of the exhibits they weregiven notice to produce. Hence Section 167 cannot operateagainst the appellant."Per JAURO, J.C.A. (Pp. 27-28, Paras. D-E)- read in context

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8. PRACTICE AND PROCEDURE - PRELIMINARY OBJECTION:Best procedure where the purpose of an objection is merely tochallenge the competence of some of the grounds of Appealand not the competence of the entire appeal"The law is settled that a preliminary objections are only filedagainst the hearing of an appeal and not against one or moregrounds of appeal which cannot stop the Court from hearingthe appeal. See NNPC. V. FAMFA OIL LTD. (2012) 17 NWLR (pt.1328) pg. 148 @ 185-186 paras F-B. The instant preliminaryobjection is not a challenge to the hearing of the appeal, but achallenge to some grounds of appeal. The law is now settledthat any challenge to some grounds ought to be by way ofmotion on notice not preliminary objection. Based on theforegoing the preliminary objection is incompetent. See NEPAV. ANGO (2001) 15 NWLR (pt. 737) 627, NWAOLISAH V.NWABUFOH (2011) 14 NWLR (Pt. 1268) 600 at 641."Per JAURO,J.C.A. (P. 10, Paras. A-D) - read in context

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ADAMU JAURO, J.C.A. (Delivering the Leading

Judgment): The appeal herein is against the decision of

the Plateau State High Court of Justice presided over by

Hon. Justice D.D. Longji delivered on 21st November, 2014

in Suit No.PLD/BL32/2013.

In a brief summary, the facts of the case as pleaded by the

plaintiff now respondent before the lower Court was that,

the respondent is a customer of the appellant with savings

Account No. 2056354508. The respondent alleged to have

opened the said account on the 23rd November, 2011 with

opening balance of N160,000.00 at the appellant’s Bokkos

branch. Subsequent lodgments of the sum of N34,000.00,

N30,000.00 and N226,000.00 were said to have been made

by the respondent in the said account at different occasions

and he never made any withdrawal from his deposit until in

March, 2012 when he needed to withdraw N400,000.00

from the ledger balance of N450,000.00 where he was

informed by the appellant's Bokkos Branch that the account

was empty. The respondent stated that he made several

demands for the refund of his money, including the request

from his solicitor but to no avail. Aggrieved with

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the action of the appellant, the respondent instituted this

action before the lower Court and claimed for the following

reliefs:

"(a) The refund of the sum of N420,000.00 (Four

Hundred and Twenty Thousand Naira) being principal

sum lodged with the defendant.

(b) An order that the defendant pays 10% monthly

interest on 420,000.00 (Four Hundred and Twenty

Thousand Naira) from March, 2012 until judgment is

settled and thereafter, 10% monthly interest on

judgment sum until full and final satisfaction.

(c) Special Damages of N287,000.00 (Two Hundred

and Eighty seven Thousand Naira) being cost of legal

fees incurred as a result of engaging his solicitors to

recover his legitimate earnings.

(d) General and exemplary Damages of N7,000,000,00

(Seven Million Naira) for loss of earnings, reputation

psychological turmoil and unnecessary pressure

placed on plaintiff as a result of the gross negligence

and breach of trust exhibited by the defendant in

handling the affairs of the plaintiff as it relates to the

Banker/ Customer relationship.

(e) Cost of this suit as assessed."

See pages 10 to 16 of the record of appeal.

In its statement of defence

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before the trial Court, the appellant denied the

respondent's claims to the extent that the alleged

lodgments of the sum of N34,000.00, N30,000.00 and

N226,000.00 was not done by the plaintiff himself but

rather through his friend one Andy Igbo who was working

with the defendant as a fund transfer officer. The appellant

alleged that the said Andy Igbo did not deposit the sum of

money given to him by the respondent into the

respondent's account. They stated further that the sum of

N30,000.00 refunded into the respondent’s account was

discovered during internal investigation directed by the

management of the appellant against the said Andy Igbo

wherein a teller containing the sum of N30,000.00 was

discovered in the Andy Igbo's car. They pleaded that the

relationship between the respondent and Andy Igbo

remained private between themselves, since the

respondent failed to follow normal banking procedure in

depositing his money with the appellant. It asserted that

because of the private arrangement, the respondent made a

report to the police against Andy Igbo.

After the parties have joined issues before the trial Court,

the matter proceeded to trial. The

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respondent testified as a sole witness and tendered seven

(7) exhibits marked as Exhibits P1, P2, P3, P4, P5, P6 and

P7 (a) & (b). The appellant on its part called two witnesses

and tendered one Exhibit marked as Exhibit D1.

At the close of parties' case and addresses the learned trial

Judge entered judgment for the respondent in the following

terms:

"On the whole, therefore I hereby enter judgment as

follows:

1. The sum of N390,000.00 (Three Hundred and

Ninety Thousand Naira) only

2. 10% per annum on the judgment sum

3. N2,000,000.00 (Two Million Naira) as general

damages."

Dissatisfied with the said decision, the appellant filed

notice of appeal on 25th November, 2014. The appeal is

predicated on four grounds of appeal. The grounds and

their particulars including the reliefs sought from this

Court are contained on pages 177-179 of the record of

appeal. The record of appeal that was compiled and

transmitted to this Court was deemed entered on the 28th

September, 2016. Parties filed and exchanged their

respective briefs of argument. The appellant's brief is dated

26th October, 2016 and deemed filed on the 18th January,

2017.

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The appellant also filed appellant reply brief dated and filed

on 17th February, 2017. The respondent's brief of

argument is dated 29th September, 2016 and further

deemed filed on 18th January, 2017.

On the 13th March, 2017, the appeal came up for hearing

before the Court, learned counsel for the respondent Chief

Gideon Musa Kuttu identified and adopted the respondent's

notice of preliminary objection to the competence of the

grounds of appeal which is contained in the respondent's

brief of argument at pages 3-7. He urged the Court to

strike out the four grounds of appeal and accordingly

dismiss the appeal.

The learned counsel for the appellant L.E. Anyia Esq.

adopted the appellant's amended brief of argument, as well

as the appellant's Reply brief. He urged the Court to hold

that the notice and ground of appeal filed by appellant is

competent and to dismiss the notice of preliminary

objection filed by the respondent and to allow this appeal

and set aside the judgment of the lower Court. In the

response to the merit of the appeal, learned counsel for

respondent adopted his argument contained in his brief of

argument. Before delving into considering

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the merit of the appeal, consideration of the respondent's

preliminary objection will be made, to determine whether

the merit of the appeal is to be considered.

The grounds of challenging the competence of the grounds

of appeal are as follows:

1. Ground one is ground of mixed law and facts

2. Ground two is ground of fact and not of law

3. Ground three is ground of mixed law and facts

4. Ground four is ground of mixed law and fact.

In all these grounds, learned counsel for the respondent

contended that, the appellant requires leave of this Court

before filing same, but the appellant refused, neglected and

failed to seek and obtain leave of this Court before filing

same. In view of the absence of leave, the learned

respondent's counsel raised a lone issue for the

determination of his preliminary objection. Thus:

"Whether appellant's grounds of appeal does not

constitute grounds of facts, mixed law and fact which

must be filed with the leave of this Court under the

1999 Constitution of Federal Republic of Nigeria (as

amended).”

In arguing the preliminary objection, learned counsel for

the respondent submits that the

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appellant's grounds of appeal are either of fact or mixed

law and facts which requires leave of this Court. He stated

that the four grounds question the evaluation of facts

before the application of the law, (which makes grounds of

mixed law and fact, the question of the assessment of the

admissible evidence, which makes ground of fact) and the

issue of the conclusions of the lower Court as one of

possible resolution which this Court would not have

reached if seized of the issue (which makes it a ground of

law but mixed law and fact). He referred to the cases

of OGBECHIE V. ONOCHIE (1986) 2 NWLR (pt. 23)

484 at 491 paras F, G-H, OPUIYO V. OMONIWARI

(2007) 16 NWLR (Pt. 1060) 415 at 430 Paras C-D and

AKINYEMI v. ODUA INVESTMENT Co. LTD. (2012) 17

NWLR (pt. 1329) SC 209 at 230 - 231 paras C-H.

Learned counsel contended that since the appellant failed,

refused and neglected to obtain the requisite leave of this

Hon. Court before filing this appeal, the appeal is

incompetent and same should be dismissed. He relied on

the cases of NALSA & TEAM ASSOCIATE V. N.N.P.C.

(1991) 8 NWLR (Pt. 212) 652 at 666 para B,

AKINYEMI v. ODUA INVESTMENT Co. LTD. (supra) at

page 233

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Para B-D, NEWSWATCH COMMUNICATIONS LTD. V.

ATTA (2006) ALL FWLR (Pt. 318) SC. 580 at 598 and

UNION BANK OF NIGERIA PLC. V. SOGUNRO (2006)

ALL FWLR (pt.337) SC. 402 at 410- 411 paras H-A.

Learned counsel urged the Court to find and hold that the

appellant’s four grounds of appeal with the accompanying

particulars are incompetent being grounds of fact, mixed

law and fact and leave must be sought and obtained before

filing same, but which the appellant has failed, neglected

and refused to obtain. He also urged the Court to strike out

the four grounds of appeal and accordingly dismiss this

appeal.

In response to the respondent's notice of preliminary

objection, learned counsel for the appellant submits that

the respondent’s assertion is misconstrued and

incompetent for the fact that the respondent having

admitted the fact that appellant's grounds of appeal are

mixed law and facts, ought to have filed a motion on notice

challenging the grounds of appeal that they are of mixed

law and fact, instead of filing a notice of preliminary

objection challenging the three grounds of appeal

contained in the appellant's notice of appeal. He relied on

the

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case of NWAOLISAH v. NWABUFOH (2011) 14 NWLR

(pt. 1269) Pg. 600 @ 641 paras E-G. He urged the Court

to dismiss the respondent's notice of preliminary objection.

In his further response, learned counsel submits that

assuming but not conceding that the respondent was right

in filing a notice of preliminary objection, instead of a

motion on notice challenging the competence of the

appellant's grounds of appeal, submits that the appellant

three grounds of appeal are of pure law not mixed law and

facts.

Learned counsel further contended that the decision of the

lower Court being a final decision of the High Court sitting

at first instance, it is immaterial whether the grounds of

appeal are of mixed law and facts. He referred to Section

241(1) (a) of the 1999 Constitution (as amended) and the

cases of JOHN AYOADE V. SPRING BANK PLC. &

ANOR. (2012) 4 NWLR Pg. 611 para C-F and

LAMBERT SUNDAY IWUEKE V. IMO BROADCASTING

CORPORATION (2005) 17 NWLR (Pt. 955) Pg. 470

paras C-E.

Based on the authorities cited above, he urged the Court to

hold that the notice and grounds of appeal filed by the

appellant are competent and to strike out the notice of

preliminary

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objection filed by the respondent.

The law is settled that a preliminary objections are only

filed against the hearing of an appeal and not against one

or more grounds of appeal which cannot stop the Court

from hearing the appeal. See NNPC. V. FAMFA OIL LTD.

(2012) 17 NWLR (pt. 1328) pg. 148 @ 185-186 paras

F-B. The instant preliminary objection is not a challenge to

the hearing of the appeal, but a challenge to some grounds

of appeal. The law is now settled that any challenge to

some grounds ought to be by way of motion on notice not

preliminary objection. Based on the foregoing the

preliminary objection is incompetent. See NEPA V. ANGO

(2001) 15 NWLR (pt. 737) 627,NWAOLISAH V.

NWABUFOH (2011) 14 NWLR (Pt. 1268) 600 at 641.

It is furthermore important to point out that the instant

appeal is against a final decision of Plateau State High

Court of Justice sitting as a Court of first instance not in its

appellate jurisdiction. By Section 241(1) (a) of the 1999

Constitution of the Federal Republic of Nigeria (as

amended) provides that:

"An appeal shall lie from the decisions of the Federal

High Court or a High Court to the Court of Appeal as

of right in the

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following cases:

(a) Final decisions in any civil or criminal

proceedings before the Federal High Court or a High

Court sitting at first instance; ..."

From the above provision an appeal shall lie as of right

from the decision of the High Court to the Court of Appeal

i.e. without leave of the Court of Appeal, whether the

grounds upon which the appeal is lodged are of law, or of

fact or mixed law and fact notwithstanding. In view of the

foregoing, the respondent's preliminary objection is

misconceived and is bound to fail, and is hereby dismissed.

Having dismissed on the respondent's preliminary objection

in this appeal, the coasts is now clear to proceed and

determine the appeal on its merit. In arguing this appeal,

learned counsel for the appellant L.E Anyia Esq. distilled

three issues for determination from the four grounds of

appeal to wit:

"1. Whether the trial judge was right when he held

that the plaintiff has proved his case and that the

Appellant was vicariously liable for the acts of Andy

Igbo in receiving money from the Respondent without

depositing same with the appellant?

2. Whether the trial judge

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was right when he refused to ascribe probative value

to Exhibit D1 on the grounds that criminal case had

no place in civil proceedings.

3. Whether the learned trial judge was right when

having awarded the sum or N390,000.00 (Three

Hundred and Ninety Thousand Naira) to the

respondent , fur ther awarded the sum of

N2,000,000.00 (Two Million Naira) and 10% as

interest to the respondent."

For his Part, learned counsel for the respondent also

formulated three issues for determination as follows:

“1. Whether all the acts (inclusive wrongly acts) of

the appellant’s agents, servants, stuff or employee are

imputed in law to be the acts of the appellant itself?

2. Whether Exhibit D1 unequivocally established the

deposit of monies by the respondent to be private

affairs with Andy Igbo and whether ascribing

probative value to Exhibit D1 would have substantially

changed the liability of the appellant in the entire

transaction in the face of other available evidences.

3. Whether the award of N390,000.00 to the

respondent (being refund of respondent's withheld

deposit(s), disentitles respondent for award of

damages of N2,000,000.00 as to

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amount to double compensation”

A cursory glance at the issues formulated by the two

respective counsel seem to be substantially similar though

couched differently. I am of the view any of the issues

adopted will conveniently determine the crux of this appeal.

I therefore adopt the appellant's issues for determination as

the ones calling for determination in this appeal, and the

appeal will be resolved on issues 1 and 3.

In arguing the first issue as reproduced supra, learned

counsel for the appellant submits that the respondent did

not prove his case in the lower Court to be entitled to the

judgment given in his favour. He contended that before a

party can be held to have proven his case in a civil matter,

the preponderance of evidence must tilt in his favour. He

referred to the case of B.O.N. LTD. v. BABATUNDE

(2002) 7 NWLR (Pt. 766) Pg. 389 @ 407 paras D-E.

It was submitted that the three exhibits tendered by the

respondent at the trial Court particularly Exhibits P2 and

P3 are invalid on the ground that they do not contain all the

requirements to show that the lodgments were made into

the appellants bank (these includes date of

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lodgment, signature of the receiving cashier and the

appellant's stamp).

Learned counsel submits that the respondents failed in

their attempt to establish their claim. The burden of proof

of the above facts lies with the respondent at all material

time which cannot be shifted on the appellant. He referred

to the case of ORLU V. GOGO-ABITE (2010) 1 S.C.N.J.

Pg.322 @ 334.

Learned counsel submits further that the respondent failed

to substantiate his assertion that his dealings with Andy

Igbo, was based on a banker and customer relationship. He

referred to page 153-154 of the record. He submits that for

a master to be liable for the tort committed by his servant,

the party alleging the tort must establish the existence of a

master servant relationship as well as to show that the

servant committed the liability in the course of his usual

duty. He relied on the case of IFEANYI CHUKWU

(OSUNDU) CO. LTD. V. SOLEH BONEH (NIG.) LTD.

(2000) 5 NWLR (pt. 656) pages 345 para A.

Learned counsel further submits that for an employer to be

liable for the acts of an employee, the act must be done in

the course of his employment. He referred to the case of

AFRICAN

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BANK NIGERIA PLC. V. ADIGUN & ANOR. (2005)

LPELR-3634 CA.

On the strength of the authorities cited above, learned

counsel argued that the act of Andy Igbo was never an act

authorized by the appellant and therefore the appellant

cannot be vicariously liable for the act of Andy Igbo. He

submits further that by delegating Andy Igbo to pay money

on behalf of the respondent, Andy Igbo became the agent of

the respondent in that respect notwithstanding the fact

Andy Igbo was a staff of the Appellant. He referred to the

case of SALAWU V. UNION BANK (NIG) LTD. (supra)

at pg. 133 @ D-H.

In his further submission, learned counsel submits that

assuming Andy Igbo is placed as an agent of the appellant,

he did not act within the scope of his authority. He referred

to the cases of AKIN TAYLOR V. BOJA INVEST. & DEV.

CO. LTD. (2014) 15 NWLR (pt. 1429) pg. 196 @

199-201 , and COTECNA INTERL. LTD. V .

CHURCHGATE NIGERIA LTD. & ANOR. (2010) 18

NWLR (pt. 1225) p. 380 paras F-G.

In another submission, learned counsel submits that in the

instant case, fraud has been established which is criminal

in nature. On that basis, he argued that there is no agency

in

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criminal conduct, as each person is personally held

responsible for his crime. He referred to the case of F.R.N.

V. DARIYE (2011) LPELR-4151 (CA). He argued that the

criminal act of Andy Igbo cannot rope the appellant. He

referred to the evidence of respondent at page 153-154 of

the record where the respondent reported Andy Igbo to the

police at Bokkos for criminal breach of trust. He also

referred to the evidence of DW1 at page 159-161 of the

record.

In yet another submission of the learned Appellant's

counsel, he contended that Andy Igbo is a proper party who

ought to be joined by the Respondent in the just

determination of this suit. He argued that the respondent's

failure to do so wrecked the foundation of his suit before

the lower Court which ought to be struck out. He referred

to the case of MOBIL OIL PLC. V. DREXEL ENERGY &

NATURAL (2004) 1 NWLR (Pt. 853) Pg. 158 para B.

Learned counsel submits that the responsibility of joining

the said Andy Igbo as necessary party lies on the plaintiff.

He referred to the case of ADISA v. OYINWOLA (2000) 6

S.C.N.J PG.322. He urged the Court to invoke the

provision of Section 167 (d) of the Evidence Act,

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2011 on withholding evidence and to overrule the judgment

of the lower Court and resolve this issue in favour of the

appellant.

In response to the appellant's submission on this issue,

learned counsel for the respondent started by making

reference to the cases of AMADIUME v. IBOK (2006)

ALL FWLR (pt. 321) CA 1247 at 1263 AND GOLDEN

CONSTRUCTION CO. LTD. V. STATE CO. (NIG) LTD.

(2014) 8 NWLR (Pt.1408) 171 at 198 on the definition

of agent and agency relationship respectively. He submits

that where the principal of an agent is known or disclosed,

the proper party to sue for anything done or omitted to be

done by the agent is the principal. He referred to the cases

of AMADIUME V. IBOK (supra) AT 1264, NIGER

PROGRESS LTD. v. NEL CORPORATION (1989) 3

NWLR (pt. 107) 68 and LEVENTIS TECH LTD. V.

PETROJESSICA ENT. LTD. (1992) 2 NWLR (Pt.234)

459.

Relying on those authorities cited above, learned counsel

contended that the appellant admitted the refund of

N30,000.00 to respondent. In the same vein, he also stated

that the appellant admitted the respondent being their

customer and Andy Igbo was a staff in the employment of

the Appellant at the material time of

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the lodgments made by the respondent at its Bokkos

branch. He referred to pages 32, 71 - 74 of the record of

appeal.

On the appellant's submission that the transaction between

the respondent and the Andy Igbo was private, learned

counsel submits that the appellant failed to prove this

assertion as the conclusion reached by the learned trial

judge confirm with the evidence on oath and cross-

examination of DW2 at pages 162 and 163 of the record.

Learned counsel further argued that contrary to the

submission of the appellant that Andy Igbo though a staff of

the appellant acted outside the scope of his authority, he

submits that the evidence of DW2 admitted that Andy Igbo

was a staff of U.B.A. BOKKOS. He referred to page 163 of

the record for full testimony of DW2.

On the several lodgments of money made by the

respondent to his saving account with the appellant,

learned counsel referred to the evidence of DW2 who

admitted that the respondent was indeed a customer of the

appellant and followed all due processes for opening of the

saving account and also admitted that Exhibits P1, P2 and

P3 are the appellant’s tellers. He further referred to the

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evidence of DW2 that N30,000.00 lodged on 31st January,

2012 was refunded to respondent in April, 2012 which is

represented by Exhibit P1.

It was submitted that DW2 having identified and admitted

that Exhibits P1, P2 and P3 were the appellant's tellers duly

issued, stamped and initialed, it is evidence of payment by

Respondent to the appellant. He referred to the case of

SALEH V. BANK OF THE NORTH LTD. (2006) ALL

FWLR (pt. 310) 1600 at 1609 paras D-F.

To further support his argument that the transaction

between the respondent and the Andy Igbo was not private

affair, learned counsel for the respondent referred to the

evidence of DW2 where he stated under cross-examination

that:

"I know that the manager of Bokkos Branch was

asked to retire. I am aware that Andy Igbo dismissed

on the strength of this complaint and other

complaint.”

He referred to pages 163-164 of the record of appeal.

Learned counsel submitted that the burden of prove that

Andy Igbo acted outside the scope of his authority and that

the transaction of respondent lodging his monies with

appellant at the banking hall through the said Andy Igbo

was a private affair

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rests on the appellant, that he who asserts most prove. He

referred to Section 135(1) (2) and Section 136 of the

Evidence Act, 2011 (as amended) and the case of U.T.C.

(NIG.) Plc. v. PHILIPS (2012) 6 NWLR (pt. 1295) CA

136 at 169- paras A-D.

In arguing further, learned counsel submits that the

ratification of the acts of Andy Igbo by the appellant

accepting to investigate the complain, refunding the sum of

N30,000 to the respondent, dismissing Andy Igbo from its

employment and compelling the manager of the Bokkos

branch to resign his appointment has created agency by

estoppel. He relied on the case of U.T.C. (NIG.) PLC. V.

PHILIPS (supra) at 162-163.

Learned counsel also distinguished the case of SALAWU V.

UNION BANK (NIG.) LTD. (supra) relied upon by the

appellant’s counsel. He submits that in Salawu's case, the

appellant (customers plaintiff) admitted both in his

statement of claim and under oral testimony on both that

he never went to the Bank to deposit the money (N7,000)

but that he called Mr. Abodarin (the staff of Union Bank)

and delegated him the task of depositing lodging the N7000

into his account. Mr. Abodarin did not deposit or

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lodge this sum into Salawu's account. He submits in the

instant case, evidence led shows that respondent had never

met the said Andy Igbo outside the premises of the

appellant but always in the banking hall and Andy Igbo had

at all times received deposits from the respondent and

other customers, stamped and initialed all tellers issued to

the respondent and other customers. He referred to the

evidence of DW2 on pages 162-164 of the record.

Learned counsel finally urged the Court to hold that the

appellant is vicariously liable for the tortious actions of

Andy Igbo its agent In all respect. He also urged to resolve

this issue in favour of the respondent.

In their appellant's reply brief, learned counsel to the

appellant responded on point of law to the respondent

argument as follows:

On whether the respondent had proved his case before the

lower Court, learned counsel submits that the respondent

did not prove his case in the lower Court to be entitled to

judgment given in his favour. His reason was that the

refund of N30,000.00 to the respondent by the appellant

was only after the officers of the control unit of the

appellant discovered in

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possession of Andy Igbo's bank tellers one of which was

verified to be bank teller No. 69735 and after due

authentication, the said sum of N30,000.00 was paid into

the plaintiff's account while Exhibit P2 and P3 contended

by the learned counsel were invalid on the ground that they

do not meet the requirements to show that lodgments were

made into the appellant's bank. He argued that those

exhibits were not signed and therefore a worthless piece of

paper which does not have efficacy in law. He relied on the

cases of ANYAOHA V. OBROHA (2014) 6 NWLR (Pt.

1 4 0 4 ) P g . 4 7 3 P a r a D - F . B R O S S E T T E

MANUFACTURING NIGERIA LIMITED V. M/S OLA

ILEMOBOLA LIMITED & 3 ORS. (2007) 14 NWLR P.

137-138 paras H-C.

Learned counsel further stated that the Court below acted

in speculation by admitting Exhibit P2 and P3. He relied on

the case of ABUBAKAR v. AG, FED. (2007) 3 NWLR (pt.

1022) pg. 639-640 para H-A. In his further reply, he

stated that the appellant could not bring original bank

tellers because there were no such transaction and on the

bank statement of account (Exhibit P6) produced by the

appellant, learned counsel submits that the document

speaks for itself the fact

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that the document was not objected is deemed admitted.

He relied on the case of N.B.C. PLC. V. UBANI (2014) 4

NWLR (pt. 1398) pg. 458- 459 para G-A. Learned

counsel finally reiterated that the case of SALAWU v.

UNION BANK (NIG) LTD. (supra) and F.R.N. v.

DARIYE (supra) that are relevant to the instant case.

A good starting point in resolving this issue is to determine

whether there exist a banker customer relationship

between the appellant and the respondent in their dealings.

By the combined reading of Section 61 and Section 2(1) of

the Banks and other Financial Institutions Act, 1991, a

'bank' means a company duly incorporated in Nigeria and

holds a valid banking license issued under this Act. The

word 'banker' can be used unchangeable with the word

'bank' as held by the Federal Supreme Court in the case of

AKWULE & ORS. v. THE QUEEN (1963) pg. 191 at pg.

198, thus:

"For the meaning of banker, we turn to our own law.

The Banking Act (Cap 19) does not define Banker as

such, but Bank is define thus: "Bank" means any

person who carries on banking business" ‘Banking’

business' is defined as the business of receiving

money on

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current account from the general public, of paying or

collecting cheques drawn by or paid in by and of

making advances to customers (as amended by Act

No. 19 of 1962).

Section 3(1) of this Act enacts ‘No banking business

shall be transacted in Nigeria except by a company

which is in possession of a valid licence, which shall

be granted by the minister after consultation with the

central bank, authorizing it to carry banking business

in Nigeria.

From these provisions it is clear that a bank can

operate in Nigeria only by a company or body

corporate. The word 'person' in the definition of bank

above is, therefore used primarily in the sense of a

corporation"

A customer on the other hand is someone who has an

account with a bank. See NEW NIGERIAN BANK LTD. v.

ODIASE (1993) 8 NWLR (Pt. 310) 235 at 243. While

the relationship in law between a banker and its customer

had been that of debtor and creditor. See UBA v. UBN

PCC (1995) 7 NWLR (Pt. 405) 72 at 79-80. For this

relationship to exist there must be money transaction that

connects banker and customer which arise from the nature

of a contract. See NEW NIGERIAN BANK LTD. V.

ODIASE (supra).

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In the instant case, the appellant admitted that the

respondent owns and operates a saving account No.

2056354508 with the appellant but failed to recognize the

transaction of money particularly the lodgments of

N34,000.00, N160,000.00 and N226,000.00 by the

respondent into his said saving account with the appellant.

In civil cases, like the instant case, the burden of prove of a

particular issue rests on the party who alleges it. The

ultimate burden of proving a case lies on the plaintiff in

that he is the party who will fail to obtain judgment if on

the totality of the evidence adduced before the Court the

balance of probabilities does not weight in his favour. See

UDECHUKWU v. NGENE (1992) 8 NWLR (pt. 261) 565

at 585-586.

In the instant case, the respondent alleged that he

deposited various sums of money into his savings account

with the appellant, the burden of proving that he deposited,

the aforesaid amounts with the appellant rest on him. In

proof of payment of money into bank account, the law is

well settled that the best way of proving payment of money

into a bank account is by production of bank teller or an

acknowledgement showing on its

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face that the bank has received the payment. See UBA Plc.

v. G.S. IND. LTD. (2011) 8 NWLR (pt. 1250) pg. 590 @

621 and SALEH V. B.O.N. LTD. (2006) 6 NWLR (pt.

976) 316.

In the instant case, the respondent relied on Exhibit P1 for

the deposit of N30,000.00, Exhibit P2 for the deposit of

N160,000.00 and Exhibit P3 for the deposit of

N226,000.00. In terms of Exhibit P1, the parties are ad

idem that the appellant refunded the sum of the money

contained in the said exhibit for the respondent, hence the

N30,000.00 does not form part of the claim before the

lower Court.

On the other hand, Exhibit P2 as alleged by the respondent

to have deposited the sum of N160,000.00 into his account

with the appellant, I have carefully examined the said

Exhibit, though it was stamped with the appellant's stamp,

but there was no mark or signature of a cashier

acknowledging the said deposit. While for Exhibit P3 there

was neither stamp of the appellant nor mark of the cashier

acknowledging receipt of the said deposit of N226,000.00.

There was also no teller tendered for the N34,000.00 which

the respondent said was lost in December, 2011. Exhibits

P2 and P3 were not signed or

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initialed by any cashier in line with Banking Law and

Practice, though P2 had stamp. The lower Court in its

judgment on page 172 stated thus:

"As pointed out, the slips are carbon copies very faint

and not clearly legible but the stamp of UBA could be

faintly on Exhibits P1 & P2. The plaintiff also stated

that he lost the slip of the deposit of N34,000.00 paid

in December, 2011."

Consequent upon the foregoing, Exhibits P2 and P3 that

were neither signed not initialed by a cashier cannot be

said to constitute evidence of payment to the appellant.

It was the contention of the respondent that the failure of

the appellant to produce the original tellers after notice to

produce same has been specifically requested will be taken

against the appellant. He placed reliance on Section

167(c)(d) and(e) of the Evidence Act 2011 (as amended).

In interpreting the above Section, this Court in the case of

UBA PLC. V. G.S. IND. (NIG.) LTD. (supra) (a) Pg.

621- paras C-E, per LUKULO-SODIPE held:

"Where a party adduces evidence that go to show the

existence of a document in proof of his case, the

document should be tendered pursuant to the

provision

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of Section 149(d) (now Section 167(d) of the Evidence

Act, evidence which could be produced but is not

produced is presumed to be against the interest of

the party withholding the same. In the instant case,

the trial Court in the face of the failure of the

appellant to produce the documentary evidence it

pleaded reliance upon in establishing that it was on

the 9/4/1996 that the respondent paid in its draft, was

very correct in invoking the provision of Section

149(d) of the Evidence Act against the appellant."

See also CHEMIRON INT. LTD. V. EGBUJUONUMA

(2007) ALL FWLR (Pt. 395) 444; ABUBAKAR v.

WAZIRI (2008)14 NWLR (pt. 1108) 507. The failure to

produce the original by the party served notice to produce,

gives the adverse party the opportunity to tender a

secondary evidence of the document. The appellant

maintained both in their pleadings and evidence that they

do not have in their custody the originals of the exhibits

they were given notice to produce. Hence Section 167

cannot operate against the appellant.

The respondent having failed to prove having deposited his

money with the appellant within the meaning of banking

business, any deposit made by

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the respondent other than through the practice of

depositing money with the appellant is personal to him. The

position of the law on this point is clearly enunciated by

PER TAYLOR C.J. IN STANDARD BANK OF NIGERIA

LTD. V. ATTORNEY GENERAL OF THE FEDERATION

(1971) 2 NCLR 181 at 193-183 where he held thus:

"The same principle of law is stated in different in 1

Halsbury's Laws in England, 3rd Edition, para 522 at

233 as follows: But if a third person pays money to an

agent under a mistake of fact, or in consequence of

some wrongful act, the agent is personally liable to

repay it, unless, before the claim for repayment was

made upon him he had paid it to the principal or done

something equivalent to payment to his principal so

clear is the law on this subject that in the case of

GOWERS v. LIYOYDS OF NPF BANK (1938) 1 ALL ER.

at 773; 158 LT. at 469... that where an agent has

received money paid to him by "third person under a

mistake of fact, if he still has the money in his hands

it can be received. If on the other hand, he paid it

away to his principal, then it cannot be recovered

from the agent, and the only remedy is to go against

the principal."

In

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the instant case, the respondent admitted to have given his

money to Andy Igbo for depositing same with the appellant

under a mistaken believe that the said Andy Igbo was a

cashier with the appellant, since it was not established that

the said Andy Igbo paid the monies received from the

respondent to his principal (the appellant), the respondent

has not proved having paid the money into his account with

the appellant.

Flowing from all that had been said, this issue succeeds

and is resolved against the respondent and in favour of the

appellant.

ISSUE THREE

Whether the award of N390,000.00 (Three Hundred

and Ninety Thousand Naira) to the respondent's

withheld deposit(s), disentitles respondent for award

of general damages of N2,000,000 (Two Million

Naira) as to amount to double compensation.

In arguing this issue, learned counsel for the appellant

submits that where a person is compensated under one

head of damages for a particular injury, he cannot be

awarded damages in respect of the same injury under

another head as it will amount to double compensation. He

relied on the case of BRITISH AIRWAYS V. ATOYEBI

(2014) 13 NWLR (Pt 1424) pg.253 @

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289 paras B-H and EMIRATE AIRLINE V. NGONADI

(2014) 9 NWLR (pt. 1413) pg. 506 @ 546-546 paras

H.A.

Based on the authorities cited above, learned counsel

submits that the learned trial judge after awarding the sum

of N390,000.00 to the respondent, the award of the said

N2,000.000 (Two Million Naira) to the respondent was

wrong as it was a double compensation which the law

frowns at. He referred to the cases of JOHNHOLT Plc. v.

ACCEN (2014) 17 NWLR (pt. 1437) pg. 449 @ 466

para F and ZENITH PLASTICS INDUSTRY LTD. V.

SAMOTECH LTD. (2007) 16 NWLR (Pt. 1060).

It was further submitted that the award of 10% per annum

on the judgment, sum is nebulous and vague as there is no

date and time from which the 10% will start to run. He

argued that any attempt by the respondent to generate a

date or time from which the 10% will start to run will be

speculative. He relied on the case of INTRA MOTORS

NIG. PLC. v. CHIEF A.M.A. AKINLOYE (2001) 6 NWLR

(pt. 708) pg. 61 @ 75 para A-B.

The respondent counsel for his party, submits that the

general damages of N2,000,000.00 out of N7,000,000.00

claimed by the respondent is indeed far less than necessary

to compensate the

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respondent for injury suffered in humiliation, psychological

turmoil, loss of use of his legitimate earning etc. He stated

that it cannot therefore be justifiable for appellant to urge

the Court to deem the general damages of N2,000,000.00

awarded as amounting to double compensation. He submits

that the award of N390,000.00 to the respondent is not a

compensation to respondent but a refund of his legitimate

earning. He argued that the award of N2,000,000.00 with

interest is only compensation for injury suffered and cannot

be regarded or considered as full compensation to amount

to double compensation. He relied on the case of ARISONS

TRADING V. MILITARY GOVERNOR OGUN STATE

(2009) ALL FWLR (pt. 496) SC 1819 at 1859.

Learned counsel contended that the entire submission of

the appellant on this issue is misconceived and

misunderstood and should be discountenanced. He urged

the Court to hold that the award of N390,000.00, 10% per

annum interest and N2,000,000.00 general damages by the

learned trial judge is proper, lawful, equitable and just and

resolve this issue in favour of the respondent.

General damages are damages which the law implies or

presumes

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to have accrued from the wrong complained of or as the

immediate, direct and proximate result or the necessary

result of the wrong complained of. A trial Court has the

discretionary power to award general damages and when

exercising such discretionary powers, it has the duty to

calculate what sum of money will be reasonably awarded in

the circumstance of the case. See TAYLOR V.

OGHENEOVO (2012) 13 NWLR (pt. 1316) pg. 46 @ 66

paras F-H, GARBA v. KUR (2013) 13 NWLR (pt. 831)

and BELLO v. AG. OYO STATE (1986) 5 NWLR (Pt. 45)

828.

In awarding general damages, the Court would simply be

guided by the opinion and judgment of a reasonable man.

General damages are loses which flow naturally from the

defendants act. See IJEBU-ODE LOCAL GOVT. V.

ADEDEJI BALOGUN & CO. LTD. (1991) 1 NWLR (Pt.

165) 136.

In the instant case, since the respondent failed to establish

any wrong committed by the appellant against him, general

damages cannot flow in favour of the respondent. On the

basis of this settled principle of law, I hereby set aside the

order made by the trial Court awarding the sum of

N2,000,000.00 being general damages in the respondent

favour. This issue is

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hereby resolved in favour of the appellant and against the

respondent.

On a whole, having resolved all the issues for determination

in this appeal in the appellant's favour, the appeal is

meritorious, same is hereby allowed. The judgment of

Plateau State High Court of Justice presided over by

Honourable Justice D.D. Longji delivered on 21st

November, 2014 is hereby set aside. An order is hereby

made dismissing the respondent's case before the lower

Court. I make no order as to costs.

UCHECHUKWU ONYEMENAM, J.C.A.: I had the

opportunity to read the draft copy of the judgment just

delivered by my learned brother ADAMU JAURO, JCA. I

agree with his lordship that the appeal is meritorious and

ought to be allowed. I allow the appeal and set aside the

judgment of High Court of plateau State delivered on 21st

November, 2014.

No order as to costs.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I

have had the privilege of reading before now the lead

judgment delivered by my learned brother, Adamu Jauro,

JCA. His Lordship has considered and resolved the issues in

contention in the appeal. I agree with and

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abide the conclusion reached therein.

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Appearances:

L.E Anyia Esq. with him,F.O. German Esq. ForAppellant(s)

Chief G.M. Kuttu with him, S.J. Duguru Esq. ForRespondent(s)

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