UMEH V GT BANK

UMEH V GT BANK


IN THE COURT OF APPEAL
IN THE BENIN JUDICIAL DIVISION
HOLDEN AT BENIN
ON FRIDAY, 31ST MARCH, 2017


APPEAL NO: CA/B/338/2012

CITATION: CA (2017) 3 LLER 1

Before Their Lordships

JIMI OLUKAYODE BADA, J.C.A.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

MUDASHIRU NASIRU ONIYANGI, J.C.A.


BETWEEN

GUARANTY TRUST BANK PLC

(APPELLANTS)

AND

MRS NKIRU STELLA UMEH

RESPONDENTS


PRONOUNCEMENTS

A. AGENCY
1. Disclosed Principal–On whom liability lies where an agent acts on behalf of a disclosed principal;

In ESSANG VS. AUREOL PLASTIC PLC (2003) 17 NWLR Part 795 Page 155 at Page 181, it was held among others that; “An agent acting on behalf of a known and disclosed principal incurs no liability. This is because the act of the agent is the act of the principal. It was the principal who did or omitted to do what the agent did or omitted to do…he who does an act through another is deemed in law to do it himself.” It is the law that it is the disclosed principal of an agent who can sue and be sued for the wrongful act of the agent. In this case Ilolo Ogho Amakaino is the Agent of the Appellant, even where an action is taken against the agent of a disclosed principal, such an action is incompetent. See the following cases: ATAGUBA & CO VS GURA NIG. LTD (Supra), B.B. & SONS LTD VS. O.H.M.B. (Supra), OSIGWE VS. P.S. PLS MANAGEMENT CONSORTUM LTD (Supra), B.P.E. NIG. LTD VS. ROLI HOTELS LTD (Supra), AMADUIWE VS. IBOK (2006) 6 NWLR Part 975 Page 158. PER BADA, J.C.A. (para. 57-58) READ IN CONTEXT.

2. Economic Tort–On the liability of the principal for the economic tort and fraud of his agent;

Stoljar, in his book the law of agency, 1961 Edition make the following observation on tortious acts of an agent. He said thus; “In the second place, ‘P’ is also liable where ‘A’ commits not a physical but an economic wrong, the main instance of this being where ‘A’ perpetrates a fraud upon ‘P’s’ client or customer. In this situation it is certainly true to say that ‘A’ acts as an agent as distinct from a servant the reason for this distinction being simply this: that ‘A’ would have no opportunity to committing the fraud, unless he is in a position of agent and thus able to deal contractually with the third party. Further where ‘A’ so acts as agent, ‘P’ becomes liable to ‘T’ not only where ‘A’ is a servant, but also where he is an independent contractor, for in the law of agency “P’s” liability does not depend on ‘A’ precise employee status, since ‘P’ can be liable where ‘A’ is employed or self employed” provided he is an agent…” PER ONIYANGi, J.C.A. (para. 92-93) READ IN CONTEXT.

B. APPEAL
3. Ground of Appeal–Whether the mere fact that a ground of appeal is one of fact makes it mandatory to obtain leave of court to file same;

I do not agree with the view of the Learned Counsel for the Respondent because the mere fact that a Ground of Appeal is based on facts does not mean leave of Court must be sought to file same. “Section 241(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) states that an appeal shall lie from decisions of the Federal High Court, or High Court to the Court of Appeal as of right in the following cases:- (a) Final decisions of any civil or criminal proceedings before the Federal High Court or High ourt sitting at first instance.” In my humble view, this appeal under consideration was brought against a final decision of the lower Court, sitting as a Court of first instance, it is an appeal as of right which does not require leave of this Court nor that of the lower Court. It is an appeal as of right which comes under the scope of Section 241(1) (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). It does not fall under Section 241 (1) (b) of the 1999 Constitution (Supra). See the case of – KANO TEXTILE PLC VS G & H (NIG.) LIMITED (2000) (Supra) Page 420 at 450 – 451. PER BADA, J.C.A. (para. 19-21) READ IN CONTEXT.

4. Issues for determination–On the law that issues must relate to and be tied to a ground of appeal;

It is settled that an issue formulated for determination in an appeal must relate, arise or derive from a competent Ground of Appeal before it could be competent. Where an issue does not arise from or relate to the Ground of Appeal, it becomes incompetent and liable to be struck out. See, ADUKU VS FRN (2009) 9 NWLR Part 822 Page 308; ANIMASHAHUN VS U.C.H. (1996) 10 NWLR Part 476 Page 65; KOKORO-OWO VS LAGOS STATE GOVERNMENT (2001) 11 NWLR Part 723 Page 237 at 384 Paragraphs E – F….The position of the law is that once an issue for determination is from a ground of appeal, such an issue is competent. It is now trite that issues in an appeal should arise and be tied to the grounds of appeal and any issue which is not based on a ground of appeal is incompetent and it ought to be struck out. Also any ground of appeal not based on the decision appealed against is incompetent. PER BADA, J.C.A. (para. 27-30) READ IN CONTEXT.

5. Issues for determination–Whether a party can formulate issues in excess of the grounds of appeal filed; effect of proliferation of issues;

It is trite that whereas an issue can be tied to more than one ground of appeal, more than one issue cannot be tied to a single ground of appeal. A situation as in this appeal where the Appellant filed (3) three grounds of appeal and now formulated (4) four issues for the determination of the appeal is uncalled for because it amounts to a surplusage. And in such a situation, the extra issue must be struck out. PER BADA, J.C.A. (para. 38) READ IN CONTEXT.

6. Issues for determination–Whether a party on appeal is entitled to put forward a different case than that made out at the lower court;

It is settled law that where a party intends to raise a fresh argument on appeal, leave of this Court must be sought and obtained. See the case of – EZUKWU VS UKACHUKWU (2004) All FWLR Part 224 Page 2137. In this appeal under consideration, the lower Court did not make any finding to warrant formulation of Issue No. 3.5 in the Appellant’s brief (i.e. Issue No. 4). The Appellant is precluded from setting up a fresh case on appeal, he is only entitled to contest the Judgment of a trial Court only on the issue properly raised before it and pronounced upon by it. The only exception however, is if the Appellant successfully applied for leave to raise fresh issue on appeal. PER BADA, J.C.A. (para. 35-37) READ IN CONTEXT.

C. PRACTICE AND PROCEDURE
7. Pleadings–Need for the entire pleadings of parties to be taken into consideration to properly determine the dispute between the parties;

In situations like this, it is the law that, it is the entire pleadings of the parties that are taken into consideration, in order to determine the claim or the defence being put forward by either of the parties. It is therefore improper to treat or rely on just specific paragraphs of the pleadings in isolation of other paragraphs. See – A.S.E.S.A. VS EKWENEM (2009) 13 NWLR Part 1158 Page 410; – ANAMBRA STATE ENVIRONMENTAL SANITATION VS EKWENEM (2009) (Supra) at page 838. PER BADA, J.C.A. (para. 81) READ IN CONTEXT.


LEAD JUDGEMENT DELIVERED BY BADA, J.C.A.


  1. This appeal emanated from the Judgment of the High Court of Justice, Delta State of Nigeria in Suit No – A/240/08 – Between: MRS NKIRU STELLA UMEH VS GUARANTY TRUST BANK PLC delivered on 3rd day of November, 2011.
  2. Briefly, the facts of this case are that the Respondent commenced an action at the lower Court against the Appellant (which was Defendant at the lower Court) for a recovery of N1.5 million Naira and interest therein in a contract of fixed deposit she entered with the Appellant.
  3. At the conclusion of hearing, Judgment was entered in favour of the Respondent in the following terms: -(1) The sum of (N1,560,000.00) One Million, Five Hundred and Sixty Thousand Naira being the Claimant’s investment with the Defendant and interest accruing thereto as of the maturity date of April 8th 2007.(2) Interest on the said sum at the rate of 20% per annum, from this date until the Judgment debt is liquidated.(3) The sum of (N20,000.00) Twenty Thousand Naira as damages for breach of contract.
    (4) The claim for interest on the principal and interest at the rate of 16% per annum from 9th April 2007 till Judgment is refused.
  4. The Appellant who is dissatisfied with the Judgment of the lower Court lodged his notice of appeal against the said Judgment. The said Notice of Appeal is made up of three grounds. The Grounds of Appeal without its particulars are set out as follows:(A) The learned trial Judge erred in law when he held that Exhibit D in the said suit did not exculpate/remove any liability from the Appellant.Particulars……………….

    (B) The learned trial Judge erred in law when he found that Defendant/ Appellant was liable to the Plaintiff/ Respondent in contract on the basis of agency when no such evidence was on record before the Court

    Particulars

    …………………

    (C) The Judgment of the learned trial Judge on 3/11/2011 is against the weight of the evidence. Particulars

    …………………

  5. The Learned Counsel for the Appellant formulated four (4) issues for the determination of the appeal. The said issues are set out as follows:-(1) Whether having regard to the fact that Exhibit “D” in this suit made on 14/3/2007, a period of more than one month before Exhibit “B” was to mature on 7/4/2007 the Appellant was not by that and the contents therein exculpated or exonerated from any liability to pay any money it denied receiving. In other words, what is the entire purpose/ purport of Exhibit “D” in this suit in the face of denials of Exhibit “B” by the Appellant Bank.(2) Whether the learned trial Judge was right to have reconciled the conflict in pleadings and evidence notably of the Respondent that had no hand in the issuance of Exhibit “B” in favour of the Respondent.(3) Whether having regard to the evidence on record learned trial Judge was right to have found that there was a contract of an agent of the Appellant for which the Appellant was vicariously liable.

    (4) Whether having regard to the evidence on record the Appellant was liable to the Respondent in any binding contract as was found by the lower Court.

  6. The Learned Counsel for the Respondent, in his own case, formulated (2) two issues for the determination of this appeal. The issues are set out as follows:-(1) Whether the lower Court was right in holding that Exhibit “D” did not exculpate the Appellant of liability to the Respondent under the contracts.(2) Whether from the totality of the evidence before the lower Court, the trial Judge was right to hold that there was a contract between the Appellant and the Respondent for which the Appellant was liable for its breach.
  7. PRELIMINARY OBJECTION

  8. The Learned Counsel for the Respondent raised Preliminary Objection to the appeal in the following terms:-(a) That Ground “C” of the Grounds of Appeal is the omnibus ground which required the leave of Court before it could be filed.”
  9. He submitted that Ground C of the Grounds of appeal is the omnibus ground which required leave to file. He relied on the following cases:– OPUIYO VS OMONIWARI (2007) 16 NWLR Part 1060 Page 415 at 431;
    – TIME CONNECTION LTD VS ICHIE (2010) All FWLR Part 543 Page 1879.
  10. It was contended by the Learned Counsel for the Respondent that a complaint that the Judgment in the omnibus ground is against the weight of evidence implies that the Judgment of the trial Court cannot be supported by the weight of evidence adduced by the successful party and that the inference it drew based on the evidence it accepted cannot be justified.
  11. The Learned Counsel for the Respondent submitted that Ground C of the Grounds of Appeal being a ground on facts requires leave of either the trial Court or this Court.
  12. In response to the objection raised to Ground “C” of the Grounds of Appeal, the Learned Counsel for the Appellant submitted that the Respondent is in breach of the provision of Order 18 Rule 4(1) of the Court of Appeal Rules 2011, which provides that the Respondent’s brief of argument must be filed within 30 days of service of the Appellant’s brief on her.
  13. He went further that under Order 18 Rule 10 (1) – where the Respondent fails to file his brief within 30 days as stipulated in Rule 4(1), he will not be heard in oral argument.
  14. He relied on the following cases:– XTODEUS TRADING CO. VS. VINCENT STANDARD TRADING CO (1995) 8 NWLR Part 412 Page 244 at 252;- UZOUKWU VS EZEONU II (1991) 6 NWLR Part 200 Page 708 at 750;
    – BURAIMOH VS BAMGBOSE (1989) 3 NWLR Part 109 Page 352 at 360.
  15. On the issue of Ground “C” of the Ground of Appeal, he submitted that the mere fact that a ground of appeal is based on facts does not mean leave of Court must be sought to file same.
  16. He relied on Section 241(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). He also relied on the case of:

    – KANO TEXTILE PLC VS G & H (NIG.) LTD (2000) 2 NWLR Part 751 Page 420 at 450 – 451.

  17. In this appeal under consideration, a careful reading of the case- file would reveal that the Respondent’s brief of argument filed on 30/5/2013 was deemed as properly filed on 21/9/ 16 by an order of this Court.
  18. I am therefore of the view that since the Respondent’s brief was regularized by the order of this Court, she is not in breach of any Rules of Court.
  19. Concerning the objection to Ground “C” of the Notice of Appeal which the Learned Counsel for the Respondent contended that as an omnibus Ground of Appeal that leave of this Court is required.
  20. I do not agree with the view of the Learned Counsel for the Respondent because the mere fact that a Ground of Appeal is based on facts does not mean leave of Court must be sought to file same.
  21. “Section 241(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) states that an appeal shall lie from decisions of the Federal High Court, or High Court to the Court of Appeal as of right in the following cases:-(a) Final decisions of any civil or criminal proceedings before the Federal High Court or High ourt sitting at first instance.”
  22. In my humble view, this appeal under consideration was brought against a final decision of the lower Court, sitting as a Court of first instance, it is an appeal as of right which does not require leave of this Court nor that of the lower Court. It is an appeal as of right which comes under the scope of Section 241(1) (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). It does not fall under Section 241 (1) (b) of the 1999 Constitution (Supra). See the case of – KANO TEXTILE PLC VS G & H (NIG.) LIMITED (2000) (Supra) Page 420 at 450 – 451.(back to top?)
  23. The cases relied upon by Learned Counsel for the Respondent are not relevant. In particular, OPUIYO VS OMONIWARI (Supra) which was a decision which went on appeal to the Supreme Court from the Court of Appeal. What was interpreted in the decision was Section 233 (3) of the 1999 Constitution (Supra).
  24. This leg of objection therefore failed.
  25. (b) The second leg of the objection is that issue 3.3 in the Appellant’s brief of argument did not arise from any ground of appeal.
  26. The Learned Counsel for the Respondent submitted that every issue for determination in an appeal must be distilled from the Grounds of Appeal and that any issue that does not arise from any Ground of Appeal ought to be discountenanced and the arguments in its support, struck out. He relied on the following cases:-RE: OLAFISOYE (2004) All FWLR Part 198 Page 1106 at 1138;
    – SALAWU VS ADEBANKE (2010) All FWLR Part 540 Page 1275;
    – FRCN VS NWANKWO (2012) All FWLR Part 641 Page 1546 at 1559.
  27. The Learned Counsel for the Appellant submitted that it is from particular II to [ground] C that Issue No. 2 was formulated.
  28. It is settled that an issue formulated for determination in an appeal must relate, arise or derive from a competent Ground of Appeal before it could be competent. Where an issue does not arise from or relate to the Ground of Appeal, it becomes incompetent and liable to be struck out. See –- ADUKU VS FRN (2009) 9 NWLR Part 822 Page 308;
    – ANIMASHAHUN VS U.C.H. (1996) 10 NWLR Part 476 Page 65;
    – KOKORO-OWO VS LAGOS STATE GOVERNMENT (2001) 11 NWLR Part 723 Page 237 at 384 Paragraphs E – F.

  29. A careful reading of the three Grounds of Appeal filed in this matter would reveal that it is from Ground “C” of the Grounds of Appeal that Issue 3.3 was distilled from. In fact, the particulars of Issue C states thus:-
    “that the learned trial Judge was wrong to have reconciled the conflict in the pleadings and evidence of the Plaintiff/Respondent in favour of the Plaintiff/Respondent.”
  30. The position of the law is that once an issue for determination is from a ground of appeal, such an issue is competent.
  31. It is now trite that issues in an appeal should arise and be tied to the grounds of appeal and any issue which is not based on a ground of appeal is incompetent and it ought to be struck out. Also any ground of appeal not based on the decision appealed against is incompetent.(back to top?)
  32. In this case, since the said Issue 3.3 was formulated from Ground “C” of the notice of Appeal, the said issue is competent. The Preliminary Objection failed on this point, and it is hereby struck out.
  33. The last leg of the Preliminary Objection is that argument on Issue 3.5 of the Appellant’s brief of argument contained in Paragraph 4.4 – 4.4.6 are fresh argument, not canvassed at the lower Court and no leave of Court was sought to canvas the said argument.
  34. The Learned Counsel for the Respondent urged that Issue 3.5 i.e. Issue 4 by counsel for the Appellant set out earlier in this Judgment should be discountenanced and thereafter strike it out.
  35. The Learned Counsel for the Appellant in his response stated that the argument being referred to is reflected in Paragraph 3.52 to Paragraph 3.55. He urged that the objection should be dismissed.
  36. It is settled law that where a party intends to raise a fresh argument on appeal, leave of this Court must be sought and obtained. See the case of – EZUKWU VS UKACHUKWU (2004) All FWLR Part 224 Page 2137.
  37. In this appeal under consideration, the lower Court did not make any finding to warrant formulation of Issue No. 3.5 in the Appellant’s brief (i.e. Issue No. 4).
  38. The Appellant is precluded from setting up a fresh case on appeal, he is only entitled to contest the Judgment of a trial Court only on the issue properly raised before it and pronounced upon by it. The only exception however, is if the Appellant successfully applied for leave to raise fresh issue on appeal.(back to top?)
  39. Apart from the foregoing, the Appellant filed (3) three Grounds of appeal out of which (4) four issues for determination was formulated.
  40. The Learned Counsel for the Respondent contended that it is a clear case of proliferation of issues which the Supreme Court frowned at in – AKOMOLAFE VS GUARDIAN PRESS LTD (2010) All FWLR Part 517 Page 773 at 781 – 782.
  41. It is not in doubt that the Appellant formulated (4) four issues for the determination of this appeal out of (3) three grounds of appeal earlier filed, this in my view is clearly a proliferation of issues which must not be condoned.
  42. It is trite that whereas an issue can be tied to more than one ground of appeal, more than one issue cannot be tied to a single ground of appeal. A situation as in this appeal where the Appellant filed (3) three grounds of appeal and now formulated (4) four issues for the determination of the appeal is uncalled for because it amounts to a surplusage. And in such a situation, the extra issue must be struck out. This leg of objection succeeds.(back to top?)
  43. In the circumstance, the said Issue No. 3.5 i.e. Issue No. 4 is hereby struck out.See the following cases:-
    – LABIYI VS ANRETIOLA (1992) 8 NWLR Part 258 Page 139;
    – DUNG VS GYANG (1994) 8 NWLR Part 362 Page 315.
  44. At the hearing of the appeal, the Learned Counsel for the Appellant stated that the appeal is against the Judgment of Delta State High Court, which Judgment was delivered on 3/11/2011. The Notice of Appeal was filed on 11/11/2011. (See pages 85 – 86 of the Record of Appeal). The Appellant’s brief of argument was filed on 6/12/2012 and deemed as properly filed on 21/9/2016. The Appellant’s reply brief was filed on 5/6/2013 but deemed as properly filed on 21/9/2016. The Record of Appeal was deemed as properly filed on 8/7/2013.
  45. The Learned Counsel for the Appellant adopted and relied upon the Appellant’s brief as well as the reply brief of argument in urging that the appeal be allowed.
  46. The Learned Counsel for the Respondent, on the other hand, referred to the Respondent’s brief of argument filed on 30/5/2013, and deemed as properly filed on 21/9/2016. He also adopted and relied on the said Respondent’s brief of argument in urging that the appeal be dismissed.
  47. I have carefully read through the issues formulated for the determination of the appeal by counsel for the parties, the issues are similar but the issues formulated by counsel for the Appellant encapsulated the issues formulated on behalf of the Respondent. I will therefore rely on the said issues formulated on behalf of the Appellant.
  48. ISSUES FOR THE DETERMINATION OF THE APPEAL ISSUE NO 1

  49. Whether having regard to the fact that Exhibit “D” in this suit made on 14/3/2007, a period of more than one month before Exhibit “B” was to mature on 7/4/2007. The Appellant was not by that and the contents therein exculpated or exonerated from any liability to pay any money it denied receiving.
  50. In other words, what is the entire purpose/purport of Exhibit D in this suit in the face of denials of Exhibit “B” by the Appellant Bank?
  51. The Learned Counsel for the Appellant stated that Exhibit “D” is the contract agreement between the Respondent and a certain Ilolo Amakaino on repayment plan for the money the Respondent was said to have handed over to him. He submitted that the finding of the trial Judge that Ilolo Amakaino is an agent of the Appellant amounts to importing/formulating agreement for the parties. He contended that it is not the function of a Court of law to make agreements for parties or change their agreement. He relied on the following cases:– ADETOUN OLADEJI NIG LTD VS N.B. PLC (2007) All FWLR Part 357 Page 837 at 851 Paragraphs E – F;
    – IBAMA VS SPDC NIG LTD (2005) LPELR – SC 66/2000 Page 17 Paragraphs C – F.
  52. It was also submitted on behalf of the Appellant that Exhibit “D” is excellent proof of Appellant’s contention that Mr. Ilolo Ogho Amakaino was the Respondent’s agent regarding the money handed over to him, and if that was not so, Respondent would not have before 7/4/2007 extracted, executed Exhibit “D”. She would have waited for Exhibit “B” to mature.
  53. The Learned Counsel for the Appellant urged this Court to resolve that Exhibit “D” exposed the fact that the Respondent related with certain Ilolo Ogho Amakaino with no intention to bind the Appellant and that the Appellant was discharged of any liability.
  54. He submitted further that the learned trial Judge erred when she resorted to oral evidence to correct or contradict Exhibit “D”.
  55. In his response, the earned Counsel for the Respondent submitted that the trial Court was right in holding that Exhibit “D” did not absolve or exculpate the Appellant of liability to pay the said sum of N1.5 Million and interest thereon to the Respondent.
  56. He relied on the following cases:– ATAGUBA & CO VS GURA NIG. LTD. 2005 All FWLR Part 256 Page 1219 at 1234;
    – B.B & SONS LTD. VS O.H.M.B. (2006) All FWLR Part 332 Page 1567;
    – OSIGWE VS PSPLS MANAGEMENT CONSORTIUM LTD (2009) All FWLR Part 470 Page 607 at 624;
    – B.P.E. NIG. LTD VS ROLI HOTELS LTD (2006) All FWLR (Part 314) Page 238;
    – EZINWA VS AGU (2003) FWLR Part 165 Page 473.
  57. In this appeal under consideration, there is evidence before the lower Court that one Ilolo Ogho Amakaino, a staff and agent of the Appellant entered into fixed deposit transaction with the Respondent on behalf of the Appellant. The following exhibits were tendered before the lower Court –- Exhibit “A” i.e. cheque book of Respondent’s Current Account with the Appellant;
    – Exhibit “B” i.e. a certificate from the Appellant to the Respondent showing the fixed deposit transaction titled – Investment in Time Deposit;
    – Exhibit “C” i.e. letter from the Respondent’s solicitor to the Appellant to pay the money when Appellant refused to pay the Respondent;
    – Exhibit “D” i.e. an agreement between the Respondent and one Ilolo Ogho Amakaino over the money in dispute.
  58. Exhibit “B” according to the learned trial Judge, is a letter to the Respondent on the Appellant’s letter headed paper. It states thus:-“INVESTMENT IN TIME DEPOSITWe thank you for banking with Guaranty Trust Bank PLC.In compliance with your instruction we have investment(sic) N1,500,000.00 in fixed deposit as follows:-

    TYPE OF DEPOSIT – TIME DEPOSIT AMOUNT – N1,500,000.00 Effective Date – January 8th 2007 Tenor – 90 Days

    Maturity Date – April 8th 2007

    Amount due at maturity – N1,560,000.00

    The investment will be rolled over at the prevailing money market rate on maturity if we do not receive instructions from you on or before then.

    In event …………………………………………………………….

    …………………………

    …………………………

    Yours faithfully.

    For Guaranty Trust Bank PLC.

    Xxxxx xxxxxx

    ILOLO OGHO AMAKAINO ABINE OGAR

    Advantium Banking Group Relationship Manager.

  59. Exhibit “B” reproduced above emanated from the Appellant and issued to the Respondent by the agent of the Appellant Ilolo Amakaino who acted for the Appellant. The two officers that signed Exhibit “B” are the officers of the Appellant.
  60. It was contended on behalf of the Appellant that though there is an Agent and Principal relationship between Ilolo Amakaino and the Appellant in Exhibit “B” but that by Exhibit “D” the Appellant as the Principal has been exculpated from liability.
  61. The contention of the Appellant cannot be correct, because Exhibit “D” is an agreement between the Respondent and the Agent of the Appellant by name Ilolo Ogho Amakaino.
  62. In ESSANG VS. AUREOL PLASTIC PLC (2003) 17 NWLR Part 795 Page 155 at Page 181, it was held among others that:-“An agent acting on behalf of a known and disclosed principal incurs no liability. This is because the act of the agent is the act of the principal. It was the principal who did or omitted to do what the agent did or omitted to do…he who does an act through another is deemed in law to do it himself.”
  63. It is the law that it is the disclosed principal of an agent who can sue and be sued for the wrongful act of the agent. In this case Ilolo Ogho Amakaino is the Agent of the Appellant, even where an action is taken against the agent of a disclosed principal, such an action is incompetent. See the following cases:- ATAGUBA & CO VS GURA NIG. LTD (Supra)
    – B.B. & SONS LTD VS. O.H.M.B. (Supra)
    – OSIGWE VS. P.S. PLS MANAGEMENT CONSORTUM LTD (Supra)
    – B.P.E. NIG. LTD VS. ROLI HOTELS LTD (Supra)
    – AMADUIWE VS. IBOK (2006) 6 NWLR Part 975 Page 158.
  64. (back to top?)

  65. In this case, by Exhibit “D” the said Ilolo Ogho Amakaino accepted liability but Exhibit “D” did not exonerate the Appellant from liability. And in law where the agent accepts personal liability, the agent and the principal becomes jointly and severally liable. See – OKWEJIMINOR VS. GBAKEJI (2008) All NWLR Part 409 Page 405 at 449.
  66. The lower Court found as a fact that Ilolo O. Amakaino was an agent of the Appellant and committed a breach of contract with the Respondent in the course of his duty. By virtue of Exhibit “D”, the Appellant as well as the agent Ilolo Ogho Amakaino becomes liable to the Respondent.
  67. A careful perusal of Exhibits “B” and “D” would reveal that the said Exhibit “D” cannot remove liability from the Appellant who is the disclosed principal.
  68. In view of the foregoing, this Issue No. 1 is resolved in favour of the Respondent and against the Appellant.
  69. ISSUE NUMBERS 2 AND 3 (Taken together)

  70. 2. Whether the learned trial Judge was right to have reconciled the conflict in pleadings and evidence notably of the Respondent that the Appellant had no hand in issuance of Exhibit “B” in favour of the Respondent.
  71. 3. Whether having regard to the evidence on record learned trial Judge was right to have found that there was a contract by an agent of the Appellant for which the Appellant was vicariously liable.”
  72. The Learned Counsel for the Appellant stated that Exhibit “B” does not belong to the Appellant. He went further that Exhibit “B” is not a bank teller that is stamped and signed.
  73. He submitted that the fact that a person is an agent and is known to be so does not of itself prevent his incurring personal liability. Whether he does so, is to be determined by the nature and terms of the contract and the surrounding circumstances. He relied on the following cases:– ASAFA FOODS FACTORY LTD VS ASAFA FACTORY LTD LER (2 02) 5 S.C. Part 1 Pages 25 – 26;
    – SALEH VS BANK OF THE NORTH LTD (2006) All FWLR Part 310 Page 1600 at 1609 Paragraphs E – F.
  74. It was submitted on behalf of the Appellant that the Respondent constituted Mr. Ilolo Ogho Amakaino as her agent to help her make the deposit which was never made. It was submitted further that mere handing over of cash to any staff of the Appellant Bank by a customer is not sufficient to rope the bank vicariously. He relied on – SALAWU VS UNION BANK (NIG.) LTD.
  75. The Learned Counsel for the Appellant stated that the origin of Exhibit B is conflicting. He then submitted that Exhibit “B” was no more than a mere confirmation letter to offer.
  76. He went further in his submission that from the evidence on record that the Respondent did not prove the existence of any enforceable contract with the Appellant.
  77. It was finally submitted on behalf of the Appellant that the failure of the Respondent to fulfill the conditions of confirming and returning Exhibit “B” clearly obviates and destroys any purported contract predicated on Exhibit “B”.
  78. The Learned Counsel for the Respondent submitted that the lower Court was right in holding that there was a contract between the Appellant and the Respondent for which the Appellant is liable under the principle of agency.
  79. It was also submitted that the best evidence of proving payment of money into bank account is by producing the bank teller or an acknowledgment showing on the face of it that the bank has received payment. He relied on the case of – SALEH VS BANK OF THE NORTH (2006) All FWLR Part 310 Page 1600 at 1609.
  80. Learned Counsel for the Respondent contended that Exhibit “B” is enough acknowledgment showing on the face of it that the Appellant received the sum of N1.5 Million from the Respondent.
  81. He went further in his argument that Exhibit “B” is an acknowledgment which showed that money was received by the Appellant and was duly signed by Appellant’s officers.
  82. On the issue of the fact that the Respondent stated in Paragraph 2 of the Respondent’s Amended Statement of Claim and Paragraph 4 of her reply to the Appellant’s Amended Statement of Defence that the Appellant had no hand in the issuance of Exhibit “B”. The Respondent argued that the word “Defendant” is a typographical error and that it ought to read “Claimant”.
  83. Learned Counsel for the Respondent submitted that where a case is fought on pleadings, that must be considered in order to determine the case of the parties.
  84. He relied on the following cases:– ETIM VS CLASEN VENTURES (2012) All FWLR Part 646 Page 596 at 61;
    – ANAMBRA STATE ENVIROMENTAL SANITATION AUTHORITY VS EKWENEM (2009) All FWLR Part 491 Page 838.
  85. He finally urged this Court to dismiss the appeal.
  86. In this appeal under consideration, a careful reading of the said Exhibit “B” would reveal that the Respondent paid into the Appellant Bank the sum of N1.5 Million as investment. The said Exhibit “B” acknowledged the payment. See the case of – SALEH VS BANK OF THE NORTH (Supra).
  87. The Learned Counsel for the Appellant contended that the Respondent in Paragraph 12 of the Respondent’s Amended Statement of Claim and Paragraph 4 of her reply to the Appellant’s Amended Statement of Defence that the Appellant had no hand in the issuance of Exhibit “B”. The Respondent, on the other hand, argued that the word Defendant is a typographical error in that it ought to read “Claimant”.
  88. In situations like this, it is the law that, it is the entire pleadings of the parties that are taken into consideration, in order to determine the claim or the defence being put forward by either of the parties. It is therefore improper to treat or rely on just specific paragraphs of the pleadings in isolation of other paragraphs. See – A.S.E.S.A. VS EKWENEM (2009) 13 NWLR Part 1158 Page 410; – ANAMBRA STATE ENVIRONMENTAL SANITATION VS EKWENEM (2009) (Supra) at page 838.(back to top?)
  89. In my humble view, a careful reading of the said Exhibit “B” as a whole would reveal that the Respondent has no imput in it. The Appellant’s officer signed as the agents in the said Exhibit “B”.
  90. It is also important to take note of the fact that according to the evidence on record that Ilolo Amakaino, the officer of the Appellant, has prior to the particular transaction been receiving money from the Respondent on behalf of the Appellant and the Appellant did not raise objection about him or even disown him. It is because the said Ilolo Amakaino defrauded the Appellant that made the Appellant to now disown him.
  91. On the whole, Issues 2 and 3 are therefore resolved in favour of the Respondent and against the Appellant.
  92. In the result, with the resolution of the three issues for determination in this appeal in favour of the Respondent and against the Appellant, it is my view that this appeal lacks merit and it is hereby dismissed.
  93. The Judgment of the lower Court in Suit No – A/240/08 – Between MRS. NKIRU STELLA UMEH VS GUARANTY TRUST BANK PLC delivered on 3rd day of November, 2011 is hereby affirmed.
  94. The Respondent is entitled to costs which is fixed at (N100,000.00) one hundred thousand Naira against the Appellant.
  95. OSEJI, J.C.A.: I have read in draft the judgment just delivered by my learned brother J.O. BADA, JCA . The reasoning and conclusions arrived thereat are quite apt and I adopt same as mine. I have nothing further to add.
  96. In the same vein, I hold that the appeal lacks merit and it is hereby dismissed. I also subscribe to the consequential orders made in the lead judgment including the order as to costs.
  97. ONIYANGI, J.C.A.: Prior to now, I read the draft of the Judgment just delivered by my learned brother, JIMI OLUKAYODE BADA, JCA, I agree entirely with his conclusion that this appeal is devoid of any merit and should be dismissed. I agree also with his reasoning leading up to the conclusion.
  98. Through out, the Appellant did not deny the fact that Mr. Ilolo Ogho Amakaino is their employee and that he was in that position when he held himself out as a serving officer of Guaranty Trust Bank PLC (the Appellant) and inside the banking hall of the Appellant. This situation created the confidence and belief in the Respondent that he was dealing with the Bank for a transaction of putting her hard earned money in a fix deposit with the Bank. For this, the said Iloho Ogho Amakaino held himself out as an employee and agent of the Bank.
  99. Stoljar, in his book the law of agency, 1961 Edition make the following observation on tortious acts of an agent. He said thus.

  100. “In the second place, ‘P’ is also liable where ‘A’ commits not a physical but an economic wrong, the main instance of this being where ‘A’ perpetrates a fraud upon ‘P’s’ client or customer. In this situation it is certainly true to say that ‘A’ acts as an agent as distinct from a servant the reason for this distinction being simply this: that ‘A’ would have no opportunity to committing the fraud, unless he is in a position of agent and thus able to deal contractually with the third party. Further where ‘A’ so acts as agent, ‘P’ becomes liable to ‘T’ not only where ‘A’ is a servant, but also where he is an independent contractor, for in the law of agency “P’s” liability does not depend on ‘A’ precise employee status, since ‘P’ can be liable where ‘A’ is employed or self employed” provided he is an agent…”(back to top?)
  101. It is trite that an agent acting on behalf of a known and disclosed principal as in the instant appeal incurred no liability. This is because acts done by the agent is the act of the principal. See AMADIUME v. IBOK (2006) 6 NWLR (PT.975) 158.
  102. At the time of the transaction, I have no doubt in my mind that the Appellant can be deemed to be dealing with the Respondent through its agent Iloho Ogho Amokaino. That is the purport of the Latin Maxim:
    “qui facit per allium, facit perse a sam facere indepur”

    Meaning:

    “He who does an act through another is deemed in law to do it himself.”

  103. Therefore, I say without any hesitation that the Appellant who is the principal is answerable for the act of his agent Mr. Iloho Ogho Amakaino.
  104. For the foregoing and the fuller reason in the lead judgment of my learned brother, BADA JCA, I too find the appeal unmeritorious and dismiss it. I abide by all the consequential orders contained in the lead judgment.