UNITED BANK OF AFRICA PLC v. IBEH ESTHER OGOCHUKWU (2014)

UNITED BANK OF AFRICA PLC v. IBEH ESTHER OGOCHUKWU

(2014)LCN/7643(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 16th day of December, 2014

CA/L/651/2011

RATIO

TORT: VICARIOUS LIABILITY; WHETHER VICARIOUS LIABILITY CANNOT LIE IN CRIME

In this area the law is settled that vicarious liability cannot lie in crime. In SOLEH BONEH LTD’S Case (supra), the Supreme Court commenting on vicarious liability of master for wrongs of the agent/servant which also included criminal offences by such agent held thus: Vicarious liability “means that one person takes the place of another so far as liability for the tort is concerned. It implies that a master is liable for any wrong, even if it is criminal offence as a tortuous act committed by this servant while acting in the course of this employment.” per. ABIMBOLA OBASEKI-ADEJUMO, J.C.A.

COMMERCIAL LAW: AGENCY; WHETHER A PRINCIPAL IS LIABLE FOR THE FRAUD OF HIS AGENT

It is in this regard that I agree with the postulation by Ronald Rubinstein in “JOHN CITIZEN AND THE LAW” that: “The general rule is that a principal, is liable for the fraud of his agent if the fraud is committed within the scope of the agent’s actual or implied authority, but he is not liable if the fraudulent act was outside the scope of his actual or implied authority, it is therefore necessary in each instance to examine the relevant facts.

There is much common sense in these principles, which are based on the general legal doctrine that when two parties have been victimized by the fraud of a third party, the innocent party who by his conduct has enabled the fraud to be perpetuated must bear the loss, If the banks agent has defrauded the customer, it is generally speaking, more reasonable that the bank should have to bear the loss than the customer. The bank appoints its agent; the bank made inquiries as to the integrity of agent and had the opportunity of judging his/her reliability. The customer has no means of investigating these matters and it is not her business to inquire”

Also the cases of SAMUEL OSIGWE V PSPLS MGT CONSORTIUM LTD (2009) 2 NWLR (PT 1128) 398, UBA PLC V EYE GYMINERAL RESOURCES LTD (2009) LPELR (CA) BAGE (JCA) is instructive here where the court held that the appellant must exercise a standard of care in such management activity imposed by law or contract.

The status of being in a fiduciary position gives rise to certain legal incidents and obligations including, a duty of care. In ASHIBOGWU V AG BENDEL STATE (1988) 1 SC 248, the court held that:

“Whether the fraudulent act of an agent is binding on the principal, whether disclosed or otherwise is in positions to plead all defences available to her, but in the care 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. The same goes for an act of undue influence vis-a-vis the third party brought to bear on the principal by the agent. The problem is one to be sorted out between the principal and the agent”

The agent is in a position of utmost trust, the Appellant is a disclosed principal while the staff Joan king, the Account Officer, is the Agent. Having contradicted itself on who chooses an account officer, the Appellant has admitted the averment of the Respondent that they infact chose the account officer herein – confirming her as their accredited officer (so to speak). per. ABIMBOLA OBASEKI-ADEJUMO, J.C.A.

PRACTICE AND PROCEDURE: PARTIES TO A SUIT; WHO IS THE PROPER PARTY TO SUE WHEN AN AGENT IS ACTING WITHIN THE SCOPE OF HIS AUTHORITY FOR A DISCLOSE PRINCIPAL

It is trite that the proper party to sue and be sued when an agent is acting within the scope of his authority for a disclosed principal, is the principal and not the agent .See CARLEN NIG LTD V UNIVERSITY OF JOS (1994) 1 NWLR (PT 323) 631. per. ABIMBOLA OBASEKI-ADEJUMO, J.C.A.

EVIDENCE: BURDEN AND STANDARD OF PROOF; THE BURDEN OF PROOF IN CRIMINAL AND CIVIL CASES ACCORDING TO THE EVIDENCE ACT

It is clear generally that Section 135(1) of Evidence Act, 2011, depends on averments in the pleadings see TEWOGBADE V OBADINA (1994) 4 NWLR (PT.326) AT 352, ORUBOKUN V ORUENE (1967) 7 NWLR (PT 462) 555.

On the burden to be applied, it is the law that any allegation of crime requires proof beyond reasonable doubt. See Section 135(1) of Evidence Act 2011, OGUNDIYAN V STATE (1991) 4 SCNLR 44, BABATUNDE V BANK OF THE NORTH (2011) LPELR 824 (SC)

Though in civil cases the standard of proof is taken as satisfied upon a balance of probability or what is often referred to as preponderance of evidence, it is to the contrary where there is an allegation of crime even in a civil proceedings see EFFIOM VS CRS INDEPENDENT ELECTORAL COMM (2014) 14 NWLR (PT 213) 106, SULE V AJANI (1980) ALL NLR 170 where the court held that the burden of proof of is beyond reasonable doubt. See Section 135(1) & (2) of the Evidence Act, 2011 which provides thus:

“1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.

2) The burden of proving that any person has been guilty of a crime or wrongful act is subject to section 139 of the Act on the person who asserts it whether the commission of such act is or not directly in issue in the action”. per. ABIMBOLA OBASEKI-ADEJUMO, J.C.A.

DAMAGES: GENERAL DAMAGES; THE CORRECT MEASURE IN QUANTIFYING GENERAL DAMAGES

It is trite that, in quantifying the correct measure of general damages, it is by reliance on what would be in the opinion and judgment of a reasonable man in the circumstances. per. ABIMBOLA OBASEKI-ADEJUMO, J.C.A.

JUSTICES

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

UNITED BANK OF AFRICA PLC – Appellant(s)

AND

IBEH ESTHER OGOCHUKWU – Respondent(s)

ABIMBOLA OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Lagos State High Court delivered on 13th January 2010, by Justice Ishola.

The suit in the lower court was commenced by a writ of summon whereas the Claimant/Respondent claimed inter alia;

“An order mandating the Defendant /Appellant to restitute to the Claimant/ Respondent’s account, the sum of N870,000 (Eight Hundred and Seventy thousand Naira) being the outstanding balance of N1.1m stolen or dishonesty appropriated from the Claimant/Respondent’s account by the account officer.”

The court after trial delivered judgment in favour of the Claimant/Respondent.

The fact of the case which flows from a customer /bank issues was that:

The Respondent was a savings account customer of the Appellant bank. On 20th March, 2002 she entered the Alaba Int’l Market branch of the Appellant to check her balance. There one Wale Ogundeinde, a staff of the bank talked her into off-loading his savings account into fixed deposit accounts that would “yield better returns”. The bank assigned one Mrs. Joan King to the Respondent as her account officer to manage the fixed deposit accounts for the Respondent.

The first complaint of the Respondent is that, her account officer borrowed money from her within the banking hall (when she came on a banking transaction)in the sum of N300, 000 with a promise to repay in a few weeks. When the Respondent demanded a refund of the money, the account officer claimed she had used it to open a fixed deposit account for her in the bank. Unknown to her this turned out to be false.

On the second incident, which involved the sum of N500,000, on 27th April 2003, her said account officer visited her at home to rejoice with her over her new born baby. Thereupon she informed the Respondent that she still had N500,000 lying idle in her savings account and advised the Respondent to open another fixed deposit account with it.

Since the Respondent could not come to the bank because she just newly put to bed, the account officer gave her a detached withdrawal slip to sign to enable her (the account officer) withdraw the money the following day, (28th April, 2003) to enable her use the withdrawn sum to open another fixed account for the Respondent. Unknown to her, the account officer withdrew the money and converted it to her own use. Some weeks after the illegal conversion of N500,000, the account officer further informed the Respondent that she had restituted her account by using the money to open another fixed deposit account for her. The third and crucial event which brought the total to N1.1m involved another sum of N300,000.00. Upon the maturity of the first fixed deposit accounts of N300,000.00 and N200,000.00, the Respondent visited the Alaba Branch of the bank to roll over the money. Again the account officer accosted her at the banking hall for another financial assistance of N300,000 which the Respondent gave her. The Respondent discovered that she had been fleeced by her account officer with connivance of other inside staff she wrote a complaint to the bank (Exhibit D2). The Appellant investigated complaint and ordered the account officer to restitute the Respondent’s account. She was only able to pay back the sum of N230,000.00, before the Appellant quietly terminated her employment without resolving the issues.

The Respondent who was plaintiff in the lower court filed an action which was in her favour. The Appellant /defendant being dissatisfied filed an Amended Notice of Appeal dated 6th March 2012, and filed 7th March 2012 same was deemed properly filed on 10th November 2014 on five grounds.

The Appellant filed its Appellant’s brief dated 6/3/12 and filed on 7/5/12 same was deemed properly filed on 10/11/14, wherein he formulated 6 issues for determination, it was settled by H. NNAMEKA NUBIA ESQ. While, the Respondent’s briefs is dated and filed on 12/4/12, same was settled by chief Amos Ogbonnafa Esq. He also formulated 4 issues for determination.(From my observation, the issues of both parties are similar).

The Appellant’s issues are as follows:

1. Does the evidence before the Trial Court support the conclusion by the Trial Court that the sum of money the subject matter of the suit was illegally and dishonestly stolen or appropriated from the respondent’s account — -.- Ground 1.

2. Whether in all the circumstances of this suit the transaction between the respondent and Mrs. Joan King was an act of the said Joan King in the ordinary course of her employment to constitute her an agent of the appellant for the purpose of vicarious liability. —- Grounds 1, 3, and 6.

3. Since the respondent’s suit was premised on fraud, theft and illegally as clearly stated in her writ and statement of claim was the learned Trial Judge right in holding that what is needed for her to succeed is proof on a balance of probability in view of the provisions of Section 135(1) of the Evidence Act 2011 (Formerly Section 138 (1) of the Evidence Act LFN 1990. – – – – Ground 2.

4. Whether the award of the sum of N500,000 as damages was not excessive in all the circumstances of the case considering also that interest at the rate of 21% was also granted on the sum the subject matter of the suit. —– Ground 4.

5. Whether the judgment of the Trial Court is not against the weight of evidence. — Ground 5.

6. Whether the appellant as principal is vicariously liable for the crime of its agent under the law. —– Ground 6.

The Respondent on the other hand formulated their issues thus:

1. Whether or not the trial court was right when it held that Mrs. Joan King was an agent of the Appellant.

2. Whether or not the trial court was right when it held the Appellant vicariously liable for the deceit or actions of John King, its human agent committed within the scope of her employment with the Appellant bank.

3. Whether or not the trial court had sufficient evidence from which it made the finding of fact that Mrs. Joan King was liable for the torturous acts of deceit and unlawful conversion complained of.

4. Whether or not the award of N500,000 as general damages, in all the circumstances of this case, was excessive.

At the adoption of briefs on the 10th of November 2014 only the Appellant counsel appeared the brief of the Respondent was then deemed adopted.

I shall therefore, formulate issues from the issues for determination stated by the parties.

1. Whether or not from the evidence, the trial court was right in holding that the transactions between the Respondent and Mrs. Joan King, as a staff she could be said to be acting as an agent for the Appellant in ordinary course of the employment and therefore liable.

2. Whether the subject matter being criminal, the Defendant can be vicariously liable for the crime of its agent and whether the proof of same will be on a balance of probability in view of the provision of Sec 135(1) of the Evidence Act, 2011.

4. Whether the award of N500,000 as general damages was not in excess considering that, interest at the rate of 21% was also granted on the sum of the subject matter.

ISSUE 1

The Appellant counsel submitted that the issue revolves around the evaluation of facts by the learned trial judge. He referred to pages 494 of the records where the court held that the money was fraudulently stolen or converted and that it was illegally and dishonesty stolen as misappropriated from the client’s account; He disagreed with the findings of fact and noted that the former staff was not joined in the suit thus, limiting the evidence available to what actually transpired between the Respondent and the Appellant’s staff but that the Respondent pleaded and testified that Joan King approached her for a loan and therefore knew that it was for her private business.

He referred to paragraphs 9, 10, 14, 16, 19, 32 and 37 of the amended statement of claim dated 6/11/07 and paragraphs 9, 10, 14, 16, 19, 30, 31 and 36 of her witness deposition and submitted that the evidence does not support the conclusion of the trial court, but shows clearly that it was a private transaction between them and not in the course of the employment of Joan King.

Appellant’s counsel submitted further that there was no contrary evidence and the court should re-evaluate the evidence.

He referred to RABIU HAZMA v. PETER KURE (2010) 3 SC (Pt. 111) 138 at 160.

ANYAWU & ORS V. UZOWUAKA & ORS (2009) 6 -7 S.C (PT 11) 44 at 55.

NDUKWE V. STATE (2009) 2 – 3 S.C. (PT 11) PAGE 35 at 77 and urged that the findings and judgment be set aside.

Counsel further submitted that the trial judge failed to evaluate evidence before him as to whether the action was carried out in course of her duty. He stated that from paragraph 4 of statement of defence, paragraph 12 & 26 of statement of claim and Exhibit D2, most of the transactions were done in their residence and over the weekend.

That it is immaterial that the person indeed was a staff of the bank because Respondent agreed to lend money to her and she knew it was a private transaction. He contended that this point draws support from the refund of N230,000 (Two Hundred and Thirty Thousand Naira) to the Respondent. He contended that there is no agency in crime and referred to MURLI NIRCHANDANI TIPTOP IND. LTD V. BABATUNDE PINHEIRO (2001) FWLR PT 48 PAGE 1307 at 1323, LABODE V. OTUBU (2001) FWLR (Pt. 43) paragraph 207 at 241 and quoted the position of the court as follows

“It is well settled that any unauthorised tortuous or contractual acts of the agent cannot bind the principal.”

He therefore submitted that since the court held the action to be criminal then the principal cannot be liable, for this action. Counsel also submitted that this is the correct position of the law, having held that the subject matter of the suit was fraudulently, illegally and dishonesty stolen by Joan King from the Respondent’s account.

The Respondent on the other hand submitted that there was uncontroverted evidence before the court that Mrs. Joan King was the account officer assigned to the Respondent on 20/3/02 when Respondent first walked into the banking hall for a transaction. He referred to pages 3 -77 of Exhibit A – Respondent’s written deposition.

Furthermore, he referred to uncontroverted evidence that the Respondent had never known or met the said officials of the bank until 20/3/2002 when they talked her into offloading her savings account into fixed deposit account and that it was customer Service Manager – Mr. Wale Ogundeinde who assigned her to the Respondents. He contended that Appellant did not deny these facts but DW1 categorically stated that: (“…. A customer cannot choose his or her account officer…”) and, the court was right in finding that the staff of the Appellant was its agent. He referred to the finding and holding of the court that (“it follows that the principal, (the bank) will be vicariously liable for the action of its agent.” -) and submitted that to determine the vicarious liability of the appellant.

It is important then to determine if acts of the staff of abusing her position as Respondent account officer was clearly within the scope of the authority as the officer or employee of the Appellant.

He defined scope of authority and agency employment in the Black’s Law

Dictionary, 8th Edition – at page 1347 to include:

“Authority either conferred upon agent and also apparently impliedly been delegated to an agent.”

He further contended that the same dictionary defined “scope of employment” as:

“The activities in which an employee engages in the carrying out of the employer’s business which are reasonably foreseeable by the employer. Under doctrine of respondent superior, a principal is liable for the tort of his agent committed within the scope, actual or apparent of his employment,”

He submitted as it relates to scope of employment that the determinant factor is whether he (agent) is engaged in activities that is fairly and reasonably may be said to be incident of the employment or logically and naturally connected with it.

Respondent’s counsel put 4 posers in analysing if acts of Mrs Joan King was within the scope of authority thus:

A. Can taking money from a customer of a bank by the customer’s own account officer with a promise to refund same and later informing the customer that they had refunded same by using it to open fixed deposit account for the customer, not be said to be logically and naturally connected with the officer’s position as account officer and therefore within the scope of the authority as account officer of the customer?

B. Can withdrawing the sum of N500,000 from the customer’s account on the instruction of the customer that same be used to open a fixed deposit account for her, not be said to be fairly and reasonably incidental to the bank office/s employment?

C. Would the account officer not legally and naturally performing her function as an account officer when they informed the customer that the sum of N500,000 had been use to open fixed deposit account for her and/or that, N300,000 borrowed had been used to open another fixed deposit account for the customer, and where that turns out to be false and a mere deceit, will the bank not be liable vicariously for such lie and deceit of the bank officer?

D. Can the Respondent be said to have felt free to deal with Mrs. Joan King, Wale Ogundeinde and Emeka the way she did if they were not staff of the Appellant’s bank?

He marched the posers with the evidence on record and referred to the complaint letter, paragraphs 54 of Exhibit A that as an account officer they had immense confidence in her and this evidence was uncontroverted. He referred to evidence of Dw1 – on duty or scope of authority of account officers – at page 413 of the record and concluded that from the evidence, it is within the scope of authority of Mrs. Joan King as an account officer to inform the customer that N300,000 borrowed had been returned and used to open a fixed deposit account for the customer and when this turns out to be false the principal could be liable for such deceit.

Counsel further submitted that it is within the scope of the employment of the account officer to give the Respondent a loose withdrawal slip with which to withdraw the sum of N500,000 for the purpose of opening a fixed deposit account for the customer and when the account officer failed to carry out the instruction but rather chose to fraudulently withdraw the money, her principal who is the Appellant could be held liable for this fraudulent conversion.

He referred to Exhibit C – “Claimant Savings Account Withdrawal Booklet” and submitted that it means that it was done by account officer by the detached withdrawal slip she signed on the previous day of 27/4/03 and that she was not physically present in the bank when the money was withdrawn or paid to the account officer (Paragraphs 13-21 of Exhibit A).

He opined that despite the notice to produce, Appellant failed to produce the loose slip and that Sec 149(a) of the Evidence Act applies. He referred to Christy ONUIGBO V. SAMUEL NWEKESON (1993) 3 NWLR (PT 283), 533. AKINYEMI V STATE (1999) 6 NWLR (PT. 607) at 441.

For the meaning of vicarious liability be referred to IFEANYI CHUKWU (OSONDU) CO. LTD VS SOLEH BONEH NIG LTD (2000) FWLR (PT 27) 2046, where the court stated thus:

“Vicarious liability means that the person takes the place of another so far as liability for the tort is concerned. It implies that a master is liable for any wrong even if it is a criminal offense or a tortuous act committed by his servant while acting in the course of employment and that 3 ingredient needed to be proved, namely:

a) The liability of the wrong doer

b) That the wrong doer is a servant of the master.

c) That the wrong doer acted in the course of his employment with the master.”

He relied also on UNION BANK OF NIG VS AJAGU (1990) 1 NWLR (PT 126) 328.

On issue 1 of non-joinder of the staff canvassed by Appellant he submitted that he had a choice to sue any of them separately or the both jointly, their liability being joint and several and it was a misconception of law and he relied on IFEANYI CHUKWU (OSONDU) CO. LTD V SOLEH BONEH NIG LTD (supra).

He submitted that it was a case of a wrongful and unauthorised mode of doing same act authorised by the master.

He referred to evidence on record that the said Joan King has jumped bail.

This issue is complaining about the finding of the trial court though that Mrs. Joan Kings was the Appellant’s agent but that vicarious liability does not extend to criminal acts of the agent.

From Paragraph 3-7 of the Respondent/Plaintiff’s claim and Statement on Oath, it is clear that the plaintiff did not know the staff of Appellant bank and it was the Customer Service Manager who introduced Joan Kings to Respondent as her account officer. Defendant witness (Dw1) admitted that Account officers are appointed by the Business Manager of the bank for a customer, depending on the type of account. A customer cannot choose his or her account officer. Appellant therefore held at said staff as their staff and accredited agent to deal with the Respondent/customer on her account.

It is a fact that Respondent met the said staff for the first time at the bank and she was apparently acting on behalf of her bank and throughout, the Respondent said she was pregnant and could not come to bank to verify facts and this evidence was not shaken.

The scope of authority given to the said staff therefore includes authorization which apparently or impliedly has been delegated to an agent-as all the transactions between the staff and the Respondent were activities fairly and reasonably said to be incident of the employment or logically and naturally connected with it. What is illuminating is that at the time Respondent complained through letter of 19/6/2008 on the act of Joan King this attracted no reply.

Exhibit C, (the Saving Account withdrawal booklet) shows that the staff carried out the act in the capacity of the accounts officer of the bank. Dw1 confirms the authority to do this, but did not produce the loose slip used to withdraw the said sum of N500,000. This correctly invokes the application of See 149(d) Evidence Act, 2011. All legal means was used to produce the loose slip but Appellant refused to do this.

In CHUKWU VS NDUKA (2008) LPELR 3985 CA, AYOKU V YINUSA (2008) LPELR (3663) CA, the court held that:

“service of the notice to produce only entitles the party serving the notice to adduce secondary evidence of the document does not relieve the person serving the notice of the burden of producing the document if he can or of proving its contents.”

Consequently, the non-response to a notice to produce, the court can invoke the presumption of withholding of evidence under Section 149(d) of the Evidence Act against the defaulting party.

This seem to be a different scenario here, due to the nature of the document of which custody is in the hands of the bank ordinarily, because it’s an instrument which was once utilized as it has been done here, the counterfoil also is with the bank. It has been established that it was not the customers slip that was used, the onus lies on the Appellant by virtue of Section 140 of the Evidence Act 2011 to prove due approval before drawing down the money, hence section 149(d) of the evidence act shall be applicable in this case.

As to issue of non-joinder, the Appellant ought to have joined her if they needed her to clear the air. Paragraph 9-11 of the Respondent’s Statement of Oath, Paragraph 13 – 24 of Exhibit A are all to the effect that under the pretence of opening of the fixed account, the account officer induced her to sign a loose slip for her and the accounts were later discovered not to have been opened.

These pieces of evidence were not contradicted. In fact, DW1 who give evidence from record testified that the Letter of Complaint,(Exhibit D2)was investigated but did not know if the decision was communicated to the Respondent.

For all purposes, the lower court properly evaluated the material evidence weighed and ascribed the probative value to such evidence and arrived at the right conclusion that the said Account Officer acted for and on behalf of the defendant as Agent in the ordinary course of the employment.. See SHA V. KWAN (2000) 8 NWIR (PT 670) 685 where court stated thus:

“When a court of trial unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the appellate court to substitute its own view, for the view of the trial court”.

On the above I am satisfied that Mrs Joan king in all ramifications was properly found to have acted as agent for Appellant in ordinary course of employment and is therefore liable. I resolve this issue in favour of the Respondent.

ISSUE 2

This issue calls on the court to determine the correct assessment of burden of proof in respect of the Respondent’s suit as stated in the amended statement of claim-which counsel submits his premised on fraud, theft and illegality. This issue is interwoven with the issues 1, 2 & 6 earlier resolved above in this judgment but more specifically on the evaluation and the burden of proof on the evidence.

Appellant contended that the trial judge wrongly applied the standard of proof in Section 135(1) of Evidence Act, 2011. In the light of paragraph 57 of amended Statement of claim of 6/11/07, the subject matter of suit is fraud. Appellant’s counsel referred to paragraph 60(a), (b), & (c) of the claim and the testimony founded on it and that there was no doubt that the suit is for restitution of money fraudulently, illegally and dishonesty stolen or misappropriated – and these are all criminal actions. He relied in Section 135(1) & 135 (2) of the Evidence Act, 2011, that it was the proper burden of proof required and referred to ANYANWU V UZOCHUKWU (2009) 6- 7 SC (PT 11) PAGE 648; H.M.S. LTD V. FIRST BANK (1991) 1 NWLR (PT 167) 2; FAMURATI V AGBEKE (1981) 5 NWLR (PT 181) 1 at 13.

Counsel further contended that the judgment is against the weight of the evidence, and that they are no conflicting facts in the evidence and on the pleadings. Appellant however further testified that it was not privy to the transaction, as it was private and not done in the ordinary course of business of the staff and these facts were not controverted.

Furthermore, there is no evidence on record to support the judgment that the sum of money was fraudulently stolen and that the court should allow the appeal based on this.

The Respondent counsel on the other hand submitted that its trite law that the question of liability of the servant is purely an evidential issue which can easily be established by cogent and acceptable evidence before the court, as ample evidence is led as to culpability of Mrs Joan King to show how the account officer consistently converted the Respondent’s money on pretence of opening a fixed deposit account for the Respondent. He referred to paragraphs 9 – 11 of Exhibit A, page 301 of records, paragraph 13-14 of Exhibit A; paragraph 29 – 31 of Exhibit A -(page 303 of the record) and that in response to Exhibit D2 – Letter of complaint to the Appellant the said account officer refunded N230,000 leaving a balance of N870,000 and the finding of the judgment was right that she had fraudulently stolen or converted claimant’s money by virtue of the fact that she was her account officer in the course of her employment.

On the attitude of appellate court to lower court’s finding he submitted that an appellate court will not re- evaluate or interfere into the finding of fact of trial court without clear proof that their findings were perverse or not the result of appropriate exercise of judicial discretion.

He referred to the cases of ABIDOYE V ALAWELE (2001) FWLR (PT 43) 322; SHA V KWAN (2000) FWLR (PT 11) 118 AT 1804 and urged that it be discountenanced.

In respondent to the submission that the transaction was private before Respondent and her account officer, he submitted that it is a misconception of the facts of the case. He drew attention to the fact that N500,000 withdrawn by account officer with a loose slip on 28/4/03 on behalf of Respondent (who could not come to the bank having newly put to bed) cannot, by any stretch of imagination be called a private business.

That the Respondent’s instructions were clear that she should withdraw the money and use it in a fixed deposit account for her, but the account officer withdrew same and converted it to her own use. He referred to paragraph 13 & 16 of Exhibit A (page 292 of record).That the N3,000,000 taken from Respondent on two different occasions by her account officer turned out to be mere deceit when she lied that she used that money to open fixed deposit account for the Respondent and it turned out to be false as she had embezzled the money, therefore a private business did not arise.

On the contention that the money stolen by the account officer was a loan given, Appellant’s counsel submitted that it is a misrepresentation of the fact of the case. He contended that initially it was so but facts changed when the account officer upon demand falsely stated that the money had been used to open a fixed deposit which was false this was a fact verifiable only by the Defendant and its staff, and that this was a tort of conversion and deceit which the trial court found against the account officer and vicariously against Appellant, and the same applied to the sum of N300,000 given to the account officer.

He further contended that the N500,000 pulled out of the Respondent’s account with a loose slip at the pretence that she was going to use it to open a fixed account for the Respondent could not be said to be a loan. The account officer again said it was to be used to open a fixed deposit account but rather, she converted same to her use and all these was in course of her employment as the account officer of the Respondent.

He distinguished cases cited by Appellant as on the ground that they did not dwell on the assessment of the credibility of witnesses and case of TIPTOP IND V BABATUNDE PINHEIRO (2000) 1 FWLR (PT 48) 1307. He stated that most of the Respondent’s claim was unchallenged especially as DW1 had no knowledge of appropriate facts of the case or the response of the bank to the case and his evidence was more than clear hearsay

He stated that Respondent wrote a complaint to Appellant in exhibit D2 – it was investigated and agreed that the money would be restituted, but the Respondent was never informed of the result. The said Account Officer was quietly laid off with other staff who were indicted in the investigation and despite the notice to produce the Appellant resisted every effort to make it produce the loose slip used to withdraw the N500,000 and therefore, the Appellant had a guilty mind in suggesting they participated actively as an accessory after the facts and covered it up. He relied on the case of IFEANYI CHUKWU LTD V SOLEH BONEH LTD (supra) and The Book John Citizen and the Law by “RONALD RUBINSTEIN”, where he postulated that generally speaking and it is more reasonable that the bank should bear the loss than the customer since it was bank that appoints its agents.

He submitted that the bank is estopped from denying its conduct and that of its staff which conduct gave rise to the present litigation. He referred to Section 151 of the Evidence Act, 2011 which deals with Estoppel and also referred to the following cases:

UKAEGBU V UGOLI (1998) 6 NWLR (PT 196) 127 AT 147, EHIDIMHEN V MUSA (2010) FWLR (PT 21) 930 at 147.

He submitted that the introduction of Mrs John King to the Respondent as her account officer by the Appellant was an intentional act and declaration that the said staff is a person with high integrity and the Respondent believed that to be true and acted on such declaration to her detriment. The Appellant is however estopped for denying that act or declaration.

On standard proof, he relied on NWOBODO v ONOH & ORS (1984) NSCC 1 and submitted further that for the interpretation of Section 135(1), (then Section 137(1) of the Evidence Act by the Supreme Court, it suggests that it applies where there is specific allegation of crime so that its commission can properly be said to be a basis or foundation of the claim or defence as the case may be.

He cited A.G.E.S.A V. EKWENEM (supra) and referred to Amended Statement of claim that the dispute is founded on civil tort of deceit and conversion and that the mention of fraud or stealing in the Respondent’s Amended Statement of Claim, though an allegation with criminal undertone, are incidental to the main claims of deceit and conversion, and as such Section 135(1) of the Evidence Act, 2011 does not apply in this case. He finally submitted that from the transactions that gave rise to the action, it will be right to say that the trial court used the right standard of proof required in civil cases which is based on the balance of probabilities and relied on TORTI V UKPABI (2000) FWLR (PT 28) 2481 at 2484, ASESA VS EKWENEM (supra), OKONOJI V STATE (2001) FWLR (PT 77) 871 at 878 and submitted further that an appellant court must show utmost restraint and reject any temptation to interfere with well-considered findings of a lower court.

The Appellant again picked a quarrel with the trial judge’s finding that the money was illegally and dishonesty stolen or misappropriated from the claimant account. He cited authorities which were distinguished by the Respondent. It is trite that in Criminal matters, proof is beyond reasonable doubt while in civil matters it is based on a preponderance of evidence on a scale.

It is important to clear the air in issues 3 of the Appellants issue for determination, he made reference to Sections 135(1) of Evidence Act 2011 that its same as Section 138(1) of the old Act. I have examined same and find that it’s an error the correct section is Section 135(1) of Evidence Act 2011 is actually the equivalent of Section 137(1) of the old Act and not Section 138(1).

Vicarious liability “means that one person takes the place of another so far as liability for the tort is concerned. It implies that a master is liable for any wrong, even if it is criminal offence as a tortuous act committed by this servant while acting in the course of this employment.”

This holding implies that a principal can be vicariously liable for tortuous act, or criminal offence committed by his servant, in course of this employment. The act of the agent was deceit and fraudulent, by virtue of her position as an account officer committed against the Respondent, right under the nose of the business manager, within the banking hall while using the infrastructure of the bank.

When a bank holds out a staff to a customer it presupposes that the bank has infinite confidence in her performance, integrity, and character to interact with its bank customers. Certainly the bank will be liable for the acts of such an agent who steps out of line.

See also Section 135(1) of Evidence Act 2011, and ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY V. EKWENEM (2009) 13 NWLR (Pt.1158) 410 where the Supreme Court held that:

“as to whether Sec 138(1) of Evidence Act and Sec 138(11) of the Evidence Act is applicable is the examination of the averment in the pleading that leads to the conclusion that the specific allegation of crime is the foundation of the pleader’s claim in the sense that the claims cannot be proved without establishing the criminal allegation as a fulcrum.”

The Amended Statement of Claim and Defence joined various issues and showed that the dispute between the parties were founded on civil tort of deceit and conversion which, are matter of fraud and stealing flowing from the main claims.

In resolving this issue, the pleading is the first port of call. A perusal of the statement of claim in paragraphs 4 – 16, 21- 25 & 30 and evidence on oath shows that the bank /customer relationship began at the bank and later an account officer was assigned to the Respondent by the Appellant. Each banking activity was through her account officer who initiated a loan request and on demand informed her that it had been used to open a fixed deposit account for her and this was the pattern until she insisted on collecting the investment certificates which were yet to be issued to her. The account officer evaded the issue until Emeka, another bank official came into the picture to aid and abet the lie and deceit of the non-existent fixed deposits accounts. The relevant paragraphs of the Amended Statement of Claim at page 112 of the record read thus:

“26) The claimant states that she visited her account officer (Mrs king) at her home at Agbara Estate to inquire about the statements of account whereupon the account officer informed her that her fixed deposit account for N300,000 (three hundred thousand) will mature that week and that another fixed deposit of N200,000 will mature the following week (these are the two deposit accounts pleaded in paragraph 28 above).

27) The claimant states that armed with their information, she visited the Alaba Int’ Market branch of the defendant the following day with the purpose of rolling over the mature fixed deposit account of N300,000

28) The claimant state that on this occasion the account officer came again with another request for financial assistance that she and her business partner were looking for another N500,000 to use to clear another of their consignment at the ports

29) The claimant states that at this junction she requested for deposits account opened for her by the said account officer, where upon the latter went upstairs and returned to say Emeka who was in charge of issuing such certificates was not around and that all the certificates were in his possession.

30) The claimant states that she stayed back in the Defendant’s bank until the said Emeka returned, and Upon his return, he confirmed all that the account officer had said about the claimants fixed deposit account.

But when the claimant requested for the certificates Mr Emeka cajoled her that they were all in his custody but that he couldn’t access them due to what he called system failure. He assured he assumed the claimant that he would give the whole certificate to the Account officer.

33) The Claimant states that she was cajoled into filling a detached withdrawal slip given by her said account officer to enable her collect the deposit of N200,000 that would mature the following week as pleaded in paragraph (26) above.

38) The Claimant states that she went to Defendant bank and insisted on seeing the certificates for the money claimed to have been fixed for her by her account officer, and rather than produce the certificates the account officer became jittery.

49) She then decided to report the matter to Mr Ogundeinde, the Defendant’s staff who assigned Mrs Joan king to the Claimant at the outset as her account officer.

50) The Claimant states that Mr Ogundeinde advised her to be calm, that if the account officer did not refund the money the Defendant bank would restitute the Claimant’s account. Not satisfied the Claimant reported the matter to the Branch Manager who instituted an internal enquiry into the scam.”

The Defendant/Appellant on the other hand in its defence (in paragraph 7) in response relevant paragraphs of the witness statement are pleaded and are relevant, showing the extent of involvement of not only the account officer but other officers of the bank (Mr Ogundeinde & Mr Emeka).

7) “The paragraph 3 & 4 above of the Amended Statement of claim the defendant denies that any of its staff ever made a promise to render home service to the Claimant in whatever manner and further avers that the said MRS KING was never assigned to do the Claimant as her account officer but was at all times material to this suit a customer service officer attending to all the Defendants customer including the Claimants.”

Paragraph 14 of the said Statement of Defence provides thus:

14) In response to the averment in paragraph 19, 20, 21, 22 & 23 of the amended Statement of Claim, the defendant avers that the sum of N500,000 was validly withdrawn by the Claimant herself from her account with the defendant on 28th April, 2003 and will contend that it is obliged to pay its customers including the Claimant upon the completion of its usual withdrawal slip upon a prior request slip whether or not such withdrawal slip be from the he withdrawal booklet given to the customer”.

The witness statement was along the same line, but during cross-examination, the DW1 contradicted himself when he said the business manager appoints an account officer.

Again that the said withdrawal slip used was not what the Respondent signed for the account Officer to withdraw funds from her account. Again Dw1 stated that the withdrawal slip must be approved before any withdrawal can be made, and that another slip was used to withdraw money as against the statement that Claimant withdrew it herself. This aspect would have clarified the involvement of the bank in the issue but the bank failed to extricate itself. It was a deceit, unlawful conversion, and an abuse of office by the account officer.

DW1 did not have the facts, or knowledge, his testimony was evasive. He therefore failed to rebut the burden that shifted to the defendant under Section 138(2) of the Evidence Act 2011.

Therefore there was sufficient evidence on the record to back up the findings that the Account Officer committed the acts and the Defendant vicariously liable.

The crucial issue that arises is, how is a bank customer expected to know the inner workings/procedures of the bank? A customer always relies on the information supplied by the bank officials; in this case the Account Officer. It’s an internal working of the bank, to which the bank and its staff only, are privies to. Again at this juncture, Section 140 of the evidence act 2011 applies:

“When a fact is especially within the knowledge of any person, the burden of proving that is upon him.”

This the appellant had failed to do in the lower court.

It is in this regard that I agree with the postulation by Ronald Rubinstein in “JOHN CITIZEN AND THE LAW” that:

“The general rule is that a principal, is liable for the fraud of his agent if the fraud is committed within the scope of the agent’s actual or implied authority, but he is not liable if the fraudulent act was outside the scope of his actual or implied authority, it is therefore necessary in each instance to examine the relevant facts.

The status of being in a fiduciary position gives rise to certain legal incidents and obligations including, a duty of care. In ASHIBOGWU V AG BENDEL STATE (1988) 1 SC 248, the court held that:

In this case the Appellant is vicariously liable for the fraudulent acts of the account Officer.

On the second part of this issue the Appellant specifically challenges the standard of proof relied upon by the lower court in reaching judgment. The court applied Section 134 of the Evidence Act, 2011 instead of Section 135(1) of the Act and specific reference was made to paragraphs 60(a),(b),& (c) of the amended statement of claim of 5th November, 2007, that when the foundation of the suit is restitution of money or misappropriation from the claimants account it involves crime.

The Respondent referred to A.S.E.S.A V EKWENEM (SUPRA) where the decision of Court of Appeal, Enugu division’s decision was affirmed and upheld by the Supreme Court in 2009.

“1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.

The main claim in this action at the lower court is in paragraph 60 of the Statement of claim provides thus:

“A declaration that the defendant is liable for the fraud of Mrs Joan King, its human agent committed against the claimant in the course of her employment with the Defendant bank”

Fraud in this term connotes tort of deceit and conversion in civil action. A criminal action could also lie for “obtaining under false pretences, theft and misappropriation directly against the staff, it therefore transform the action to one which requires proof under Section 135(1) &(2) of the Evidence 2011, Act and only the criminal act therein would be put under such burden.

The crux of this issue is, would the finding or conclusions resulting in the judgment be the same if Section 135(1) & (2) of the Evidence Act, 2011 be applied on the crime allegation? What will be the effect thereon?

An appeal court will only interfere with the findings of facts of the trial court if it is demonstrated that the conclusions reached by the trial court was wrong or perverse or was arrived at as a result of improper exercise of discretion or the decision could not have reasonably flowed from the facts found. See KINDEY V MILITARY GOVT OF GONGOLA STATE & OTHERS (1988) 2 NWLR (PT.77) 445

Even if Section 135(1) of Evidence Act, 2011 is applied, from the evidence adduce on record it has been sufficiently proved as earlier stated in this judgment that, the Account officer was deceitful in the management of the account thereby abused her office.

The use of the word “BALANCE OF PROBABILITY” is the standard of proof required in a civil case and cannot defeat justice on the case nor exonerate the defendant.

From the records, the act of Mrs Joan King refunding after a complaint was made against her to the defendant, the said N500,000 with another withdrawal slip with/without approval of the superior officers of the account officer, the cover-up of the non-issuance of deposit certificates by another staff of the bank in person of Emeka, and the non-production of the slip, all add up to proof beyond reasonable doubt .The Defence failed to discharge the burden after such burden was shifted to it

Upon the evaluation of the evidence and pleadings by the trial judge in her judgment, I am satisfied that these acts of crime have been proved beyond reasonable doubt Therefore it would arrive at the same answer. No miscarriage of justice has been occasioned.

I resolve this issue in favour of the Respondent.

ISSUE 4

This issue is the same in the briefs of the parties. The complaint here is on the measure of damages awarded which is at the rate of 21%.

The Appellant submitted that the award of N500,000 was excessive and that interest of 21% was on the N870,000 and no reason was given for this figure. He submitted that it amounted to double compensation and should be set aside. He referred to ADIM V NBC LTD (2010) 3-5 SC (PT III) P.155.

The Respondent on the other hand submitted, while relying on NDINWA V IGBINEDION (2000) FWLR (PT. 30), 2673, A.S.E.S.A V EKWENEM (SUPRA), MAYA V OSHUNTOKUN (2001) FWLR (PT 81), YA’U VS DIKWA (2001) FWLR (PT 62) 1987, all to the effect that, the award of general damages is entirely at the discretion of the trial judge.

It is trite that, in quantifying the correct measure of general damages, it is by reliance on what would be in the opinion and judgment of a reasonable man in the circumstances.

That the respondent contended that they have been denied the use of her money since 2002 (for 9yrs) which usage (of such money) would have resulted in a better investment.

In resolving this issue, it is not in dispute that the money had been withheld since 2002 by the bank, while the action was filed in 2005. It is trite that damages follow upon a breach of rights. In this case it is a loss flowing naturally from the defendants act, and it needs no proof or pleading. Once the action succeeds it follows and based on the court’s discretion which the court exercises by viewing the conduct /attitude of the defendant whether, the violation was deliberate.

This was a matter that could have been resolved in-house if the defendant/appellant had properly arisen to its responsibility for acts of its staff who it held out and is highly responsible for the act of exposing such staff to its innocent customer all in the name of banking. The money that should be in the custody of the bank for safe keeping and management for its customers was carelessly or negligently handled by the bank and its staff.

In OSINJIRIN & ORS V ALH ELIAS & ORS 1070 ALL NLR 158, general damages was defined as damages at large. See also ROOKS V BONARD (1964) 2 NWLR (PT 269) AT 324, YALAJU AMAYE V AREC (1990) NWLR (PT 145) 422, WAHABI V OMONUWA (1976) LPELR 3469 (SC), CAMEROON AIRLINES V OTUTUIZU (2011) 4 NWLR 512, UBN LTD V ODUSOTE BOOKSTORES LTD (1995) 9 NWLR (PT 21) P 558 all to the effect that general damages is awarded to assuage a loss caused by an act of the adversary. A court will only interfere with an award, alter or vary same if it is shown to be manifestly too high or so extremely too low or that they were awarded on an entirely wrong principle of laws to make it an entirely erroneous estimate of the damages to which the plaintiff is entitled”

See NEKA BB MANUFACTURING CO V ACB LTD (2004) 2 NWLR (PT 858) 521, IGUH JSC stated thus:

“it is the measure of damages that will be equivalent to and ought to reflect the sum of money which will put the party who has been injured or who has suffered in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. It is said that damages that the law presumes and they flow from the type of wrong complained about by the victim.”

There is nothing in this case to show that the damages were excessive, the 21% interest is on the amount withheld.

In the light of the high standard required of a banking officers, the vulnerability of its customers and public at large, the deliberate cover up under “the banking activity,” and the time spent in litigation, I therefore do not find any reason to tamper with the award on damages. See IJEBUODE L.G V BALOGUN & CO LTD (1991) NWLR (PT 156) 136, ODUWOLE V WEST (2010) 5 SCNJ 97 AT 108.

I resolve this issue in favour of the respondent.

On the whole the appeal lacks merits and is hereby dismissed, Judgment of J.S. ISHOLA of Lagos High Court delivered on 13th January, 2011 is affirmed and cost of N50,000 is awarded against Appellant.

SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft the Judgment just delivered by my learned brother ABIMBOLA OSARUGUE OBASEKI-ADEJUMO JCA.

I agree with the reasoning and conclusion reached therein and have nothing extra to add.

On the whole the appeal lacks merits and is also hereby dismissed by me, Judgment of J.S. ISHOLA of Lagos High Court delivered on 13th January, 2011 is affirmed and cost of N50,000 is awarded against Appellant.

JAMILU YAMMAMA TUKUR, J.C.A.: I read before today a draft copy of the judgment delivered by my lord Abimbola Obaseki-Adejumo JCA. I agree with the reasoning and conclusions contained therein.

I also abide by the consequential orders made therein.

Appearances

H.N. NnubiaFor Appellant

AND

For Respondent