Legalpedia Citation: (2024-01) Legalpedia 41104 (CA)

In the Court of Appeal

Holden At Calabar

Fri Jan 5, 2024

Suit Number: CA/C/232/2013

CORAM

Hamma Akawu Barka Justice, Court of Appeal

Balkisu Bello Aliyu Justice, Court of Appeal

Peter Chudi Obiora Justice, Court of Appeal

PARTIES

FIDELITY BANK PLC

APPELLANTS

MRS. ARIT OKON PETER

RESPONDENTS

AREA(S) OF LAW

APPEAL, BANKING, CONTRACT, EVIDENCE, JUDGMENT, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

Mr. Inyang Emmah was the branch manager of the appellant and the respondent opened an account with the bank managed by Mr. Inyang Emmah who personally handled the process. She opened a fix deposit account but she was not paid by the appellant.

The appellant basically maintained at the trial that the bank was not officially involved in the transaction with the respondent and that the respondent dealt with Mr. Inyang Emmah in his private capacity and as such the appellant was not liable to the claims of the respondent. At the end of the trial, the lower Court found in favour of the respondent.

The appellant was displeased with the judgment and has challenged same hence the instant appeal.

HELD

Appeal dismissed

ISSUES

1. Whether in the circumstances of this case, the trial Court was right in holding the Appellant liable for the actions of Mr. Inyang Emmah?
2. Whether the trial Court was right in making the monetary awards it did?
3. Whether the trial Court at any time raised the issue of negligence as a tort and if he did, was his decision based thereon?

 

RATIONES DECIDENDI

CUSTOMER – MEANING OF A BANK CUSTOMER

In simple and elementary terms, a customer is someone who has an account with a bank. See New Nigerian Bank Ltd v. Odiase (1993) 8 NWLR (Pt. 310) 235 at 243 and UBA PLC v. Pel (2017) LPELR-43202(CA). – Per P. C. Obiorah, JCA

BANK MANAGER – WHETHER A BANK MANAGER CAN TAKE UP OTHER ROLES AND FUNCTIONS

The effort to say that the branch manager was not the cashier and therefore not authorized to receive fixed deposits from customers of the bank is a cheap attempt to obfuscate the role and functions of a branch manager who is the head of the branch and who all staff of the branch are answerable to. By that token, the branch manager can give instructions to any staff and even perform some duties of a staff for the overall effectiveness and efficiency of the services of the branch to her customers. – Per P. C. Obiorah, JCA

BURDEN OF PROOF – BURDEN OF PROOF IN CIVIL LITIGATION

The lower Court certainly got the burden of proof right when, at pages 218 and 219 of the record of appeal, it held thus

“Whereas the 1st and 3rd Defendants are saying that 2nd Defendant acted beyond the provision of his powers, there is no evidence to show the limits of his authority. The law is that whoever asserts must prove. See the decision of the Supreme Court in JACKIES PHILIPS V. EBA ODAN COMMERCIAL & INDUSTRIAL COMPANY LIMITED (2013) 1 NWLR (pt. 1336) 618 at 641. It is not enough to state in the Statement of Defence as the 1st and 3rd Defendant did in this Case, that the 2nd Defendant had no such powers there must be concrete evidence to support such assertions. See the decision of the Supreme Court in MILITARY GOVERNOR OF LAGOS STATE & ORS V. ADEBAYO ADEYIGA ORS (2012) 5 NWLR (pt. 1293) 291 at 337.” – Per P. C. Obiorah, JCA

BRANCH MANAGER – WHETHER A BANK IS LIABLE FOR THE ACTIONS OF ITS BRANCH MANAGER

I have no doubt that from the evidence led in this case, the respondent dealt with Mr. Inyang Emmah in his official capacity as an agent of the appellant who being the Branch Manager was legally empowered to act on behalf of the appellant. See Bamgboye v. Unilorin & Anor (1999) 10 NWLR (Pt. 622) 290.

In Ifeanyi Chukwu (Osondu) Co. Ltd v. Soleh Boneh (Nig) Ltd (2000) LPELR-1432(SC) at pages 15-16, paras. E-A, the Supreme Court, per Ogundare, JSC held thus

“The next point I need to make is that the master is answerable for every wrong of the servant as is committed in the course of his employment – see James v. Midmotors (supra), Houldsworth v. City of Glasgow Bank (1874-1880) All ER (reprint) 333; (1880) 5 App Cas. 317.”

Furthermore, in Mrs. Eke I. Theresa v. United Bank for Africa PLC (2022) LPELR-57811(CA) this Court, per Tsammani, JCA has held

It should however be noted, that, a principal can be vicariously liable for tortuous acts or fraudulent acts committed by his servant in the course of his employment. Thus where the act of an agent or servant was deceitful and fraudulent by virtue of his position, the principal will be liable. In other words, in a situation such as this, where a bank (Respondent) holds out its staff to a customer, it is presumed that the bank has confidence in his performance, integrity and character to conduct the business of the bank, in its relationship with customers of the bank. I am of the firm view that, in a situation like this, where the accounts manager of a customer, defrauds the customer in the course of interacting with the bank’s customer, the bank, being the principal must be held liable for the acts of its servant or officer.”

See also Guarantee Trust Bank PLC v. Solomon (2016) LPELR-40342(CA) andACB Ltd v. Agbanyim (Supra).

In the instant case, it is clearly established that there is a relationship of masterservant between the appellant and Mr. Inyang Emmah who was its Branch Manager. It is also my clear conviction as also established by the trial Court that the respondent dealt with Mr. Inyang Emmah officially as the manager of the appellant. In this wise, I have no doubt that the appellant is liable for the acts of its servant, Mr. Inyang Emmah, even if done wrongfully and fraudulently without authority since the act was done in the course of his employment. See First Bank (Nig.) Plc. v. Chief Charles Orakwue Azifuaku (2016) LPELR – 40173 (CA) and Agbanelo v. Union Bank (Nig.) Ltd. (2000) 7 NWLR (Pt. 666) 534. – Per P. C. Obiorah, JCA

PRINCIPLES AND DOCTRINES – WHETHER IT IS ENOUGH TO CITE PRINCIPLES AND DOCTRINES OF LAW ISOLATION FROM THE FACTS OF THE CASE

It is not enough to cite principles or doctrines of law in isolation and without reference to the facts of a case. It is the facts and the evidence led to establish those facts that any principle of law can safely hang on. In other words, the facts of a case constitute the foundation upon which you build any principle of law and determine its applicability. In the instant case, where are the facts upon which the Court can say that the respondent with her eyes wide open voluntarily assumed the risk when she dealt with Mr. Inyang Emmah I see none. – Per P. C. Obiorah, JCA

VOLENTI NON FIT INJURIA – WHERE THE PRINCIPLE OF VOLENTI NON FIT INJURIA WILL APPLY

It is the case of Alsod Nig. Ltd v. Wema Bank PLC & Anor (2008) ALL FWLR (Pt. 442) 1142; (2008) LPELR-3755(CA) (Pp. 8-10 paras. D-D). In this case, the Managing Director of the Alsod Nig. Ltd had knowledge that the manager of the bank made the company to enjoy facilities that exceeded the limit of the manager. In effect, the managing director of the company knew that they were engaged in fraudulent activities with the bank staff. It is based on these facts that this Court, per Aka’ahs, JCA (as he then was) at pages 8-10 paras. D-D held that

If there was an arrangement between the plaintiff and the 2nd Defendant that enabled the Plaintiff enjoy facilities that exceeded the limit the 2nd defendant could grant, this was outside the ostensible authority which 2nd Defendant could exercise to bind the 1st defendant. And if the Plaintiff relying on this special relationship was lured into parting with his money by the 2nd defendant, he cannot turn round to hold the 1st defendant vicariously liable for the dubious acts of the 2nd defendant. It is not for fun that a limit was set for the Manager. If she operated within the limit or acted outside the limit without the knowledge of the Plaintiff, it is only in such a situation that the 1st defendant could be held liable if the 2nd defendant went outside her limit. The defence put up by the defendants of volenti non fit injuria has therefore been made out even on the Plaintiff’s pleadings and therefore cannot maintain an action against the 1st defendant for any money which the 2nd defendant made him to part with.”

The learned Jurist went further to hold that

“Any money lost was with the knowledge and active connivance of the Managing Director of the Plaintiffs Company and since it is on his own showing that the 2nd Defendant was not acting in accordance with the mandate given to her by her employer, 1st Respondent, the latter cannot be fixed with responsibility of what the 2nd defendant did. – Per P. C. Obiorah, JCA

FINAL ADDRESS – THE PURPOSE OF A FINAL ADDRESS

I can only say that the final addresses or briefs of argument is not the place for counsel to lead evidence or make up for evidence which a party failed to produce during the trial. See Mfa v. Inongha (2005) 7 NWLR (Pt. 923) 1 and Ibikunle v. Lawani (2007) 3 NWLR (Pt. 1022) 580. – Per P. C. Obiorah, JCA

GENERAL DAMAGES – THE DISCRETIONARY POWER OF COURTS IN AWARDING GENERAL DAMAGES – MEANING OF GENERAL DAMAGES

The only thing which is at the discretion of the trial Court is the general damages. I think this is the only issue worthy of consideration. The trial Court awarded the sum of N8 million out of the N10 million claimed by the respondent.

It is trite law that general damages are the kind of damages which the law presumes to flow from the wrong complained of by the victim. What makes up the general damages need not be pleaded and specifically proved. It covers all losses which are not capable of exact quantification, including non-financial losses. The manner in which general damages is quantified by the Courts is by relying on what would be an opinion and judgment of a reasonable person in the circumstance of the case. See Badmus & Anor v. Abegunde (1999) LPELR-705 (SC); Akinterinwa vs. Oladunjoye (2000) LPELR-358 (SC) and UBA v. Ogundokun (2009) 6 NWLR (Pt. 1138) 450.

What is appropriate general damage is a matter that is at the discretion of a Judge taking into account the type of wrong committed or injury suffered. In ELF Petroleum vs. Umah & Ors (2018) LPELR-43600 (SC), the Supreme Court, per Ogunbiyi JSC restated the law as follows

It is pertinent to re-iterate herein that in the award of general damages a wide spread power is given to the Court comparable to the exercise of discretion of the Court. It is enormous and therefore far-reaching and contrary to the contention held by the Appellant herein. The measure of general damages is awarded to assuage such a loss, which flows naturally from the Defendant’s act. It need not be specifically pleaded. It suffices if it is generally averred… Unlike special damages, it is generally incapable of exact calculation – Per P. C. Obiorah, JCA

JUDGMENT – CONDUCT OF JUDGES IN WRITING JUDGMENTS

In writing a judgment a Judge has his own style and is at liberty to use words and phrases which will buttress his thoughts.  – Per P. C. Obiorah, JCA

CASES CITED

STATUTES REFERRED TO

1. NIL
   

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