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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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CA)
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
18
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CA)
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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202(
CA)
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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CA)
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
21
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7) LP
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202(
CA)
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
22
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202(
CA)
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
23
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7) LP
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202(
CA)
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).
24
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7) LP
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202(
CA)
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
25
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7) LP
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202(
CA)
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
26
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7) LP
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202(
CA)
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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CA)
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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