FRANCIS OGBORO VS THE REGISTERED TRUSTEES OF LAGOS POLO CLUB
April 25, 2025UDOM GABRIEL EMMANUEL V UMANA OKON UMANA & ORS
April 25, 2025Legalpedia Citation: (2016) Legalpedia (CA) 11441
In the Court of Appeal
HOLDEN AT YOLA
Wed Feb 17, 2016
Suit Number: CA/YL/57/2015
CORAM
PARTIES
GUARANTY TRUST BANK PLC APPELLANTS
YUNANA SOLOMON RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
ACTION, APPEAL, AGENCY, COURT, CRIMINAL LAW AND PROCEDURE, FAIR HEARING, JUDGMENT AND ORDER, LAW OF BANKING, LAW OF EVIDENCE, PARTIES, PRACTICE AND PROCEDURE, UNDEFENDED LIST, WORDS AND PHRASES
SUMMARY OF FACTS
The Plaintiff/Respondent instituted this action against the Defendant/Appellant for the refund of the sum of N 4, 000. 000. 00(Four Million Naira) he claimed to have deposited in a Fixed Deposit Account with the Defendant/Appellant at the banking hall of the Appellant’s Mubi Branch with the assistance of one Mrs. Stella Sati which he claimed was a staff of the Appellant whom he was directed to by another staff at the counter, one Mr. Samson. On the other hand, the Appellant alleged that it had no record of the transaction between the Respondent and Mrs. Stella Sati and that the relationship between Appellant and Mrs. Stella Sati was not that of Agency relationship and at any rate there was an allegation of crime against the said Mrs. Stella Sati. The Plaintiff /Respondent’s application for summary judgement was granted in his favour. Dissatisfied with the decision of the trial Court, the Defendant/Appellant on five grounds of appeal has appealed to this Court.
HELD
Appeal Dismissed
ISSUES
Whether the Appellant has made out a defence on the merit and/or a triable issue in its Counter affidavit in reply to the application for summary judgment as to be let in to defend the Suit? Whether the trial Court was right in entering judgment in favour of the Respondent in the circumstances of the case?
RATIONES DECIDENDI
SUMMARY JUDGMENT- RATIONALE FOR SUMMARY JUDGMENT
“In law, a summary judgment provision is usually aimed at dispensing with dispatch cases which are virtually uncontested and thus it also applies to cases where there can be no reasonable doubt that a Plaintiff is entitled to judgment and where it is inexpedient to allow a Defendant to defend for mere purposes of delay. It is for the plain and straight and not for the devious and crafty. See Uba & Anor V. Jargaba (2007)11 NWLR (Pt. 1045) 247, where the erudite Tobi JSC., had lucidly explained the rationale for the analogous undefended list procedure thus:
“For an action to be transferred from the undefended list to the general cause list there must be a defence on the merit and detail and particulars of defence must be set out. It must not be a half hearted defence. It must not be a defence which is merely fishing for skirmishes all over the place. It must be real defence on the merit and not a counterfeit of it. …………. The undefended list proceeding is a truncated form of ordinary civil hearing peculiar to our adversary system where the ordinary hearing is rendered unnecessary due in the main to the absence of an issue to be tried or the quantum of the Plaintiff’s claim disputed to necessitate such a hearing……. The Undefended list procedure is designed to secure quick justice and avoid the injustice likely to occur when there is no genuine defence on the merits to the plaintiff’s case. The procedure is to shorten the hearing of a suit where the claim is for liquidated sum”
See also Agro Millers Limited V. Confidential Merchant Bank (Nig) Plc (1997) 10 NWLR (Pt. 525) 469.”
AGENCY RELATIONSHIP – WAYS OF CREATING AGENCY RELATIONSHIP
“My Lords, in law whether a person is an agent of another or not is usually determined on the facts of the relationship as proved in evidence before the court. It is for this reason it is in law the relationship of principal and agent may arise in any one of five ways, namely;
(1)By express appointment whether orally or by letter of appointment and no formality such as writing is required for the valid appointment of an agent except in execution of a deed;
(2) By ratification of the agent’s act by the principal;
(3) By virtue of the doctrine of estoppels;
(4) By implication of law in the case of agency of necessity;
(5) By presentation of law in the case of cohabitation.
See Vulcan Gases Ltd V. Gesellschaff Fir Industries G. A. G. (GIV) (2001) 9 NWLR (Pt. 719) 610. See also Onyenuga V. I.C.L (1991) 1 NWLR (Pt. 168) 415; Niger Progress Ltd V. North East line Corporation (1989) NWLR (Pt. 107) 68.”
PRINCIPLE OF AGENCY- INSTANCE WHERE A DISCLOSED PRINCIPAL MAY SUE OR BE SUED
“It is now well settled that a disclosed principal may sue or be sued on any contract made on his behalf and in respect of any money paid or received on his behalf by his agent acting within the scope of his actual authority. See Dr. Dozie Ikedife & Anor V, Clement Obienu (1975) 4 SC (Reprint) @ p. 14. See also George Ashibuogwu V. The Attorney General, Bendel State & Anor (1988) NWLR (Pt. 69) 138.”
LIABILITY OF A PRINCIPAL- WHETHER ACTS OF FRAUD BY AN AGENT BINDS THE PRINCIPAL
“In law, a principal whether disclosed or otherwise is in position to plead any defence available to him, but in the case of fraud, where the agent acts within the scope of his authority, actual or apparent, the act of fraud on the part of the agent binds the principal and the same goes for an act of undue influence against a third party and brought to bear on the principal by the agent. Indeed, in all these instances it is for the problem to be sorted out between the principal and the agent and not with the third party. Thus, where there is nothing ex-facie illegal in the act of an agent on behalf of his principal, the principal is liable for the acts of the agent carried out in the course of his duties. As a general rule therefore, where an agent makes a contract solely in his capacity as agent, between his principal and a third party, he is not liable to the third party thereon. It is the principal that is liable. See Deji Oyenuga V. International Computer (Nig) Ltd (1991) 1 NWLR (Pt. 168) 41. See also Freeman and Lockyer V. Buckhurst Park Properties Ltd (1964) 24 BD 480; Alhaji Ibrahim Nakyauta V. E. Levis Thomas & Anor (1975) 5 SC (Reprint) 48; Razaq A. Balogun V. ACB Ltd & Or (19972) 1 SC (Reprinted) 54. See also Bowstead on Agency 13th Edition, Articles 117.”
CONCEPT OF AGENCY- MEANING OF THE CONCEPT OF AGENCY
“What then is the concept of Agency in law? Agency is the fiduciary relationship created by express or implied contracts or by law in which one party the agent may act on behalf of another party (the principal) and binds that other party by word or action, thus a principal is one who authorizes another to act on his behalf while an agent is one who is authorised to act for or in in place of another, a representative. See Black Law Dictionary 7th Edition. See also Bayero V. Mainasara (2006) 8 NWLR (Pt. 982)391”
SUMMARY JUDGMENT- PROCEDURE FOR SUMMARY JUDGMENT.
“Procedures for summary judgment are provided for in Order 22 of the Adamawa State High Court Civil Procedure Rules 2013. Going by the several judicial authorities on the essence of this procedure, which is somewhat akin and used interchangeably in some of these judicial authorities with Undefended list procedure, is geared towards the attainment of speedy but substantial justice in cases in which a Defendant really has no defence to the claim of the Plaintiff against him and that is nothing worth being further investigated by the Court on the affidavit evidence of the parties.
The very straight forward, and if I dare say very simple uncomplicated procedure is that on the date fixed for hearing of the application for summary judgment, the Court would after hearing the parties or their counsel ascertain if on the facts as placed before it the Defendant had made out any triable issue or defence on the merit. In arriving at such a finding, the Court would critically scrutinize and examine the pleadings of the parties, their affidavits and documentary Exhibits if any to determine at that stage if the Defendant has disclosed any defence on the merit or raised at least triable issue that would need to be further investigated into by the Court by way of a full hearing. However, where the Court finds that the Defendant has not disclose any defence on the merit or raised any triable issue. Court is under a duty to proceed to enter judgment in favour of the Plaintiff against the Defendant, no more no less.
In law, where there are substantial conflicts as to the facts of the case on the pleadings and affidavit of the parties, it would be sufficient to hold that the Defendant has raised some triable issues as would required further enquiry and thus a transfer of the matter to the general cause list would be made so that the right of the parties would be settled on the merit on the evidence as would be put forward by them at the trial. See Delta Air Services Ltd V. Sudan Airways Ltd (2004) All FWLR (Pt 238) 697.”
SUMMARY JUDGMENT PROCEDURE – ON WHO LIES THE DUTY TO ESTABLISH DEFENCE ON THE MERIT IN A SUMMARY JUDGMENT PROCEDURE
“The duty to show defence on the merit or triable issue under the Summary Judgment Procedure is squarely on the Appellant, who was the Defendant at the Court below. See Order 22 (4) of the Adamawa State High Court Civil Procedure Rules 2013.”
JOINDER OF PARTIES- EFFECT OF NON-JOINDER AND MISJOINDER OF PARTIES TO A SUIT
“…the law is now well settled that non joinder or even mis – joinder of even necessary parties to a Suit is a mere irregularity which by itself is no longer capable in law to render an otherwise competent Suit incompetent. See Azuh V. UBN Plc (2014) LPELR 22913 (SC), where the Supreme Court per Kekere – Ekun JSC., had pronounced with finality thus:
“The position of the law is that non joinder of a necessary party in a Suit is an irregularity that does not affect the competence or jurisdiction of a court to adjudicate on the matter before it”
See also Okoye V. Nigerian Construction & Furniture Co. Ltd. & Ors. (1991) 7 SC (Pt. 111)(Reprint) 33 @ p. 56; Green V. Green (1987) 3 NWLR (Pt. 60) 480.
However, a caveat must be pointed out immediately that in law if a necessary party or any party for that matter is not joined to a Suit, any order made against a person who was not a party to the Suit before the court, though not a nullity, is to no avail and thus not binding on such a non party to the action. See Uwazurike & Ors. V. AG. Federation (2013) 4 – 5 SC (Pt. 1) 90 @ p. 119. See also Uku V. Okumagba (1974) 1 All NLR (Pt. 1) 475; Azuh V. UBN Plc (supra) @ pp. 37 – 38.”
ALLEGATION OF FRAUD- ALLEGATION OF FRAUD IN CIVIL MATTERS MUST BE PROPERLY PLEADED
“See Highgrade Maritime Services Ltd V. First Bank of Nigeria Ltd (1991) 1 NWLR (Pt. 167) 290, where Wali JSC., had put it succinctly thus:
“It is trite law that where fraud is alleged it must be specifically pleaded and particulars of the fraud given to enable the party defending the allegation understand the case he is facing and prepare his defence.”
See also United Africa Co Ltd V. Taylor (1936) 2 WACA 67; Alhaji Aminu Ishola V. Union Bank of Nigeria Ltd (2005) 6 NWLR (Pt. 922) 422; Wayne (W. Africa) Ltd V. Ekwunife (1989) 5 NWLR (Pt. 122) 422.
In Ezekiel Okoli V. Morecab Fin. (Nig) Ltd (2007) 14 NWLR (Pt. 1053) 37; Onu JSC., had aptly puts it thus:
“For an allegation of fraud to avail a Defendant in a suit placed on the undefended list, it must be on matters relevant to the case put up by the Plaintiff.”
See also Nishizawa Ltd V. Jethwani, (1984) 12 SC 234; John Holt (Liverpool Ltd) V. John Holt (1961) All NLR (Reprint) 492; Wellington V. Mutual Society (1880) AC 685 @ P. 704; Hajiya Maimuna Garba & Ors V. Alhaji Buba Pate Zaria (2005) 17 NWLR (Pt. 953) 55.”
ALLEGATION OF FRAUD- STATUS OF A VAGUE ALLEGATION OF FRAUD
“An allegation of fraud that is merely generic, vague and lacking in the specific and particulars is in law a non-starter and useless. See PDP V. INEC & Ors (2012) LPELR 9724 (SC) Nishizawa Ltd V. Jethwani (1984) 12 SC 234. Wellington V. Mutual Society (1880) 5 App Cas 685; UBA & Anor V. Alhaji Babangida Jangaba (2007) 11 NWLR (Pt. 1045) 247; Sanusi Bro Nig Ltd V. C. C. E. S.A (2001) 11 NWLR (pt. 579) 566.”
NOTICE OF INTENTION TO DEFEND – CONSEQUENCE OF AN AFFIDAVIT IN SUPPORT OF A NOTICE OF INTENTION TO DEFEND
“In G.M.O Nworam and Sons Co Ltd V. Akputa (2010) All FWLR (Pt. 524) @ pp. 101 – 102, the Supreme Court stated emphatically thus:
“If a Defendant’s affidavit in support of the notice of intention to defend, where one is filed, or an affidavit to raise a preliminary objection as in the instant case, raises an issues where the Plaintiff will be required to explain certain matters with regard to his claim or where the affidavit throws a doubt on the Plaintiff’s claim, such brings the parties within the concept of ‘joining issues’. In such a situation, a triable issue comes into existence. Whenever a bona-fide issue or a triable issue comes into existence, the case ought to be entered in the general cause list. The Court has a duty to ensure fair hearing even in cases under the undefended list procedure”
SUMMARY JUDGMENT PROCEDURE- DUTY OF PARTIES AND COURT UNDER THE SUMMARY JUDGMENT PROCEDURE.
“A calm but critical look at the provisions of Order 22 of the Adamawa State High Court Civil Procedure Rules 2013, will readily reveal the duties imposed on each of the parties and indeed the Court below when dealing with matters placed under the summary judgment procedure provisions of the Rules of the Court below. It is the duty of the Plaintiff through his affidavit evidence in support of his pleading and the relevant documentary Exhibits if any that in his belief the Defendant has no defence to his claims against him. See Order 22 (1) of the said Rules of Court 2013. Upon service, the Defendant who believes that he has a good defence to the claim of the Plaintiff to file his pleadings together with his counter affidavit and documentary Exhibits if any joining issues with the Plaintiff and disclosing facts amounting to defence on the merit or raising triable issue. See Order 22 (4) of the said Rules of Court 2013.”
SUMMARY JUDGMENT PROCEDURE- DUTY OF THE COURT UNDER THE SUMMARY JUDGMENT PROCEDURE
“At the hearing of the Motion by the Plaintiff seeking summary judgment on his claim(s) against the Defendant, the duty of the Court is to carefully examine and critically scrutinize the totality of the affidavit and documentary evidence if any placed before it to see if the Defendant has disclosed any defence on the merit or raises any triable issue. Once the Court determines that the Defendant has disclosed a defence or raised triable issue, the only duty left is to let in the Defendant to defend the claim on the merit by transferring it to the general cause list for full trial on the merit. However, where the Court finds that the Defendant has neither disclosed any defence on the merit nor raised any triable issue, there is no other option left for the Court than to proceed to enter judgment against the Defendant in favour of the Plaintiff as per his claim(s).”
BANKS- LIABILITY OF BANKS TO ACTS OF THEIR STAFF AND AGENTS
“…it may well be pertinent to state that it is now settled law, that banks are always liable, in a situation where its staff or agent collected money from a customer on its behalf during or after close of the Bank business like in the instant appeal.”
FAIR HEARING – TRUE TEST OF FAIR HEARING
“The true test of fair hearing is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case. See Mohammed Oladapo Ojengbede V. M.O. Esan & Anor (2001) 18 NWLR (Pt. 746) 771.
There can be no doubt that fair hearing is in most cases synonymous with natural justice, an issue which clearly is at the threshold of our legal system, once there has been a denial of fair hearing as guaranteed under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended, the whole proceedings automatically become vitiated. A denial of fair hearing can ensure from the conduct of the Court in the hearing of a case. See Ofapo V. Sonmonu (1987) 2 NWLR (Pt. 58) 587; Wilson V. AG of Bendel State (1985) 1 NWLR (Pt. 4) 572. See also A. U. Amadi V. Thomas Aplin & Co Ltd (1972) All NLR 413.”
DENIAL OF THE RIGHT TO FAIR HEARING- EFFECT OF A DENIAL OF THE RIGHT TO FAIR HEARING ON THE PROCEEDINGS OF COURT
“An allegation of denial of the right to fair hearing, a constitutionally guaranteed right of the citizen, is a very grave allegation whenever made and therefore must not be made carelessly or lackadaisically or lightly against the Court merely to cause distraction from the real issues in contention between the parties before the Court. This is so because in law once an allegation of denial of fair hearing is made out against any proceedings and or judgment, it renders it a nullity, regardless of the merit or otherwise of the cases of the parties. I hold that the Appellant’s right to fair hearing was scrupulously observed and accorded its rightful place by the Court below and thus the complaint of denial of right to fair hearing against the Court below by the Appellant was highly misconceived and lacking in merit. See Robert C. Okafor & Ors V. AG and Commissioner for Justice Anambra State (1991) 6 NWLR (PT. 200) 659.”
CASES CITED
Not Available
STATUTES REFERRED TO
Adamawa State High Court Civil Procedure Rules 2013|Constitution of the Federal Republic of Nigeria 1999 as amended|
