OKORO NWACHUKWU v. BOJI-BOJI MICROFINANCE BANK NIGERIA LIMITED (2013)

OKORO NWACHUKWU v. BOJI-BOJI MICROFINANCE BANK NIGERIA LIMITED

(2013)LCN/6019(CA)

In The Court of Appeal of Nigeria

On Friday, the 8th day of March, 2013

CA/B/175/2010

JUSTICES

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

OKORO NWACHUKWU
(Trading under the name and style of Nwagod Ventures Nigeria) Appellant(s)

AND

BOJI-BOJI MICROFINANCE BANK NIGERIA LTD Respondent(s)

RATIO

WHETHER OR NOT THE COURT OF APPEAL HAS THE POWER TO FORMULATE ITS OWN ISSUES IN THE INTEREST OF JUSTICE

It is trite law that this court has a wide and unfettered discretionary power to formulate its own issues in the interest of justice provided they relate to the grounds of appeal and flow therefrom. In other words, an appellate court can formulate its own issues where in its opinion the issues formulated by the parties would not justly or equitably dispose of the appeal before it. Further still, an appeal court can also in same manner prefer or adopt the issue or issues formulated by any of the parties to an appeal where same would enable it do justice to the appeal. Relevant and in support is the case of Agboreh & Anor V. Mimra & Ors (2008) 2 SCM 55 at 71 wherein the apex court said thus:-
“Finally, an appellate court can prefer an issue or issues formulated by any of the parties and can, itself and on its own, formulate an issue or issues which in its considered view, is/are germane to and is or are pertinent in the determination of the matter in controversy. See:- the cases of Musa Sha (Jnr) & Anor V. Da Rap Kwan & 4 Ors (2000) 5 SCNJ 101; Lebile V. R.T.O.C & S. Church of Zion of Nig. Ugbebia & 3 Ors (2003) 1 SCNJ 463 at 479; Emeka Nwana V. Federal Capital Development Authority & 5 Ors (2004) 13 NWLR (Pt. 889) 128 at 142 -143 (2004) 7 SCNJ 90 at 99…” PER BAGE, J.C.A.

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal by the Appellant challenging the Judgment of the lower court delivered by Hon. Justice C.O. Ogisi in the High Court of Justice Owa-Oyibu Judicial Division of Delta State.
The claims of the Respondent (Plaintiff at the lower court) in this appeal, can be found in the Amended Statement of Claim on pages 31 -33 of the record of the appeal. Paragraph 14 thereof provides as follows:-
“14. Whereof, Plaintiff brings this action against the Defendant claiming as follows:-
(1) The sum of three million, five hundred and thirty-six thousand, six hundred and twenty-eight naira, fifty-four kobo (N3, 536, 628.54k) being Defendant’s indebtedness to the Plaintiff as at 30th December, 2006.
(2) AN ORDER directing the Defendant to be paying Plaintiff 30% interest rate per annum on the same N3, 536, 628.54K with effect from 1st January, 2007 until the debt is fully liquidated.”
Or
ALTERNATIVELY; an order directing the Defendant to vacate and deliver up possession of the building situate and known as No. 41, Iwezue Street, Boji-Boji Owa in Ika North/East Local Government Area of Delta State to the Plaintiff forthwith in order to give effect to the irrevocable power of attorney donated by the Defendant to the Plaintiff, stamped and registered with the Funds Registry Asaba on 2nd April, 2001 with Reg. No. DT002097806.
The Appellant in his defence filed a further amended statement of defence which can be found at pages 43 – 46 of the records.
The summary of the facts in this appeal is as follows:-
The Plaintiff now Respondent before this court brought an action against the Appellant as seen from their Amended statement of claim. The Appellant in defending the suit filed a further amended statement of defence on the 8th of May, 2008, in reaction to the amended statement of claim and amended reply filed by the Respondent on the 21st of January, 2008.
The Appellant testified and called no witness and tendered exhibits D1 -D12. The Respondent called one witness and tendered exhibits P1 -P23.
The major substance of the relief of the Respondent at the lower court in their amended statement of claim dated 17th of March, 2008 is that the Appellant opened an account in the business name of Nwagod Ventures Nig with account No. 10059 on 5th April, 1995 which signature card was tendered as exhibit P1.
On the 10/3/01 the Appellant applied for an overdraft of N100,000 and the money was granted to him at an interest rate of 30% per annum which overdraft was secured with a landed property situate at No. 41 Iwezue Street, Boji-Boji Owa. The Appellant deposited with the Respondent the Deed of Conveyance of the property and prepared a power of attorney which was signed and registered and a letter of approval was sent to the Appellant which is Exhibit P7. The overdraft was to be paid in three months and the Appellant paid the overdraft in good time.
After repaying the overdraft of N100,000, the Appellant again applied for an overdraft facility on behalf of Sky-Nwagod (Nig) Ltd where he is a director with the approval of the Board of Directors of the Company.
PW1 stated that the Respondent accepted the application of the Appellant on behalf of the Sky-Nwagod (Nig) Ltd when it was confirmed that the Appellant was actually a director in the company. According to the PW1, the Appellant who signed for the loan on behalf of Sky-Nwagod (Nig) Ltd did not repay the loan of N100,000 which was due on 30/9/01. He stated further that an additional overdraft of N950,000 and N400,000 respectively which were also applied for by the Appellant on behalf of Sky-Nwagod (Nig) Ltd and approved by the Respondent were also not paid for. As at 30/12/06 the outstanding balance of the Appellant’s dept was N3,536,682.54. He said demand notices were also written to the Appellant several times. He further said the Appellant accepted verbally that he will pay the loan.
The PW1 further testified that before the Respondent grants an overdraft to a customer, the customer must have an account and operate the account for at least six months if it is a business account. When the customer applies for an overdraft the Respondent will ask the customers to give them a security for the overdraft in the form of collateral or third party cheque depending on the amount.
According to the Appellant on 22/2/01 a loan of N100,000 was approved for Nwagod Ventures Nig. by the Respondent based on the application made by Nwagod Ventures Nig on 13/2/01. The loan was at an interest rate of 30% which the Appellant repaid within the three months duration.
Sky-Nwagod is a registered company with the corporate affairs commission for whose debt the Appellant was sued at the lower court.
After the respective parties have closed their case, their counsel filed their respective written submissions and the lower court granted the claim of the Respondent. The judgment of the lower court can be found at pages 86 – 103 of the records of appeal.
It is against the said judgment of the lower court that the Appellant has appealed to this Honourable Court.
From the Notice of Appeal contained on pages 104 – 105 of the record of appeal, of two (2) grounds, dated 14th April, 2010, the Appellant formulated two (2) issues for determination as follows:-
(1) Whether the Appellant is a proper party in the instant case at the lower court for a loan transaction he purportedly applied and signed as a director on behalf of Sky-Nwagod (Nig) Ltd.
(2) Whether the Respondent is entitled to Judgment on the loan transaction in Exhibit P9, P11, and P12 against the Appellant from the totality of evidence adduced at the lower court.
On the other hand the Respondent in its brief of argument dated 8/12/2011 and filed on the 9/12/11 formulated a lone issue for determination to wit:-
“Whether the action of the Appellant in applying for overdraft facilities from the Respondent in the letter headed paper of Sky-Nwagod Nigeria Limited automatically makes Sky-Nwagod Nig. Ltd liable for the payment of the overdraft facilities granted?”

This court, on a sober examination of the issues as formulated by the Appellant, two (2) in number, the same can be condensed into one (1) or a sole issue for determination, to give way for an easy management of the appeal.  The sole issue for determination reads thus:
“Whether the Appellant is a proper party in the instant case at the lower court for a loan transaction he purportedly applied and signed as a director on behalf of Sky-Nwagod (Nig) Ltd, and from the totality of evidence adduced at the lower court, was the Respondent entitled to Judgment.
In arguing the appeal, learned counsel to the Appellant submitted that it is settled law that by virtue of Sections 37 and 38 of the Companies and Allied Matters Act 1990 (hereinafter referred to as CAMA), a company upon incorporation is endowed with the power of an artificial person and it is thus clothed with the special gab of corporate personality. One of the attributes of corporate personality is that the company is capable of suing and being sued in its corporate name for wrong committed against or by the company.  This principle is highlighted in the very old case of SOLOMON V. SOLOMON & CO. LTD (1897) AC 33 at 66.
Learned counsel submitted further that although a company is a legal entity yet it remains an artificial person and cannot by itself organize and conduct its own affairs. A company’s policies can only be formulated and decided upon by individual human beings, who are agents of the company and can be put into effect and carried out only by human agencies. In other words corporate administration depends largely on the law of agency. See:- Leonard Carrying Co. V. Asiatie Petroleum (1915) AC 705 at 713 -714; Bebeji Oil Allied Prod. Ltd V. Pancosta Ltd (2007) 31 WRN 163 at 186.
Learned counsel submitted further that from the evidence of the Appellant at the lower court at pages 58 – 66 of the record, Sky-Nwagod Nig. Ltd is a Limited Liability Company registered with the Corporate Affairs Commission and issued a Certificate of Incorporation with No. RC 279390 which is in evidence as Exhibit D1 who can sue and be sued in its corporate name, the Respondent instead of suing Sky-Nwagod (Nig) Ltd which is a separate legal entity from its members and director, rather sued the Appellant who purportedly acted as an agent and officer of the company.  On this, see:- VIN2 Int. Ltd V. Morohundiya (2009) 11 NWLR (Pt. 1153) 562 at 579 Paras A -B; Calen (Nig.) Ltd V. University of Jos (1994) 1 NWLR (Pt. 323) 631 at 656.
Learned counsel submitted further that, it is trite even as stated in the old case of Solomon V. Solomon (Supra) that a company is a legal entity which is separate and distinct from the member and officers of the company who carries out the day to day running of the company. The pertinent question is, who did the Respondent advance the loans in Exhibits P9, P11, and P12 to? The answer is to Sky-Nwagod (Nig.) Ltd and not to the Appellant. The Appellant is only a director of Sky-Nwagod (Nig.) Ltd. He applied for the loan in his capacity as director on behalf of the company, can be sued for the indebtedness of Sky-Nwagod (Nig.) Ltd? See:- Okoli V. Morecab Finance (Nig.) Ltd (2007) 14 NWLR (Pt. 1053) 37 at 57 Para E; Orji V. Anyaso (2000) 2 NWLR (Pt. 643) at 18 -19 Para. G.A.; UBN PLC V. Orhahuge (2000) NWLR (Pt. 645) 495 at 500; A.I.B. Ltd V. Lee & Tee Ind. Ltd (2003) 7 NWLR (Pt.819) 366 at 395 Para B -C; Yesufu V. Kupper Int. NIV (1996) 35 LRNC 413 at 425; also Section 65 of CAMA.
Learned counsel submitted further that the title deeds of the Appellant for which a power of Attorney was donated to the Respondent was in respect of the loan the Appellant applied for in the name of Nwagod Ventures Nig. and not for the subsequent loan applied for on behalf of Sky-Nwagod Nig. Ltd. In PW1’s testimony there was nowhere he stated that the Appellant deposited the title deeds of his house at No. 41 Iwezue Street, Boji-Boji Owa, Ika North/East Local Government Area of Delta State to the Respondent in respect of the loans he applied for in Exhibit P9, P11 and P12. The lower court went into the arena of conflict as it concerns the Appellant not retrieving his title deed after paying the overdraft facility granted to Nwagod Ventures Nig.
Learned counsel submitted further that the error of the Respondent in granting an overdraft facility to Sky-Nwagod Nig Ltd who has no account with the bank bothers on the Respondent’s professional incompetence which the Appellant cannot be held personally liable. It is trite law that it is the duty of the trial court to resolve dispute between the parties as presented by them and it is not its business to make a case for a party before it. See:- Kalu V. Uzor (2006) 8 NWLR (Pt. 981) 55 at 89.
Learned counsel submitted further that, the appellate court can set aside findings of the trial court when same is perverse.  See:- NMS Ltd V. JP Ent. Ltd (2005) 5 NWLR (Pt. 972) 127 at 132; Ojo V. FRN (2008) 11 NWLR (Pt. 1099) 437 at 467.
In reply learned counsel to the Respondent submitted that at page 64 lines 12 -13 of the record, Appellant testified under cross-examination that Account No. 10059 with the Plaintiff belongs to Nwagod Ventures Nig. “Nwagod Ventures Nig is my business name.” Further at lines 16 -18 at the same page 64 of the printed record, Appellant testified thus; “I am the signatory to the account No. 10059 of Nwagod Ventures Nig. I pay cheques of Sky Press Ltd and Sky Nig. Ltd into Nwagod Ventures Nig. for purpose of clearing.” It is clear therefore from the testimony of Appellant that he, Appellant, was at all times the holder of current account No. 10059 with Respondent which he operated in his business name -Nwagod Ventures Nig. It is also not in dispute that the transactions in the said current account No. 10059 as contained in Exhibit P13 gave rise to the suit resulting in this appeal. Appellant did not in any way impeach the accuracy, or otherwise of Exhibit P13 (Statement of Account).
Learned counsel submitted further that at page 51 lines 13 -16 of the printed record, PW1 testified thus; “He overdraws his account to the tune of N950,000 in addition to the debit of N43,507.05.” The Defendant wrote his application for N950,000 to the Plaintiff in the letter headed paper of “Sky-Nwagod Nig. Ltd.” Further at page 52 lines 6 – 7, PW1 testified that “The Defendant was allowed to withdraw the N400,000. These pieces of evidence which reflected in Exhibit P13 show clearly that it was the same current account No. 10059 held by the Appellant in his business name that was overdrawn and not any other account.  The money passed through Appellant’s bank account with Respondents bank.
Learned counsel to Respondent submitted further that, the fact that the applications for the overdraft facilities were made in the letter headed paper of Sky-Nwagod Nig Ltd by the Appellant is of no significance as that does not mean that the overdraft facilities were automatically granted to the company. The important fact is that current account No. 10059 was overdrawn by the Appellant who is the holder. To hold otherwise will mean succumbing to technicalities and courts are enjoined to do substantial justice among parties and avoid technicalities. See:- Fagunwa V. Adibi (2004) 120 LRCN page 4548 ratio 6. The liability to pay the debt is on the account overdrawn.  See:- Allied Bank of Nig. V. A kubueze (1997) 51 LRCN Page 1648 ratio 7.
The Appellant did not raise the issue of misjoinder of his name at the early stage of the case, until the address stage before raising for the first time. See:- Babeyeju V. Ashamu (1998) 61 LRCN Page 4225 ratio 8; Nnorodim V. Ezeani (2001) 84 LRCN 560 ratio 1.
Learned counsel submitted further that, Sky-Nwagod Nig. Ltd is not a necessary party in the Suit because it has no bearing with Exhibit 13 which formed the basis of the Suit. See:- S. 131 (1) of the Evidence Act, He who asserts must prove. Since the Appellant asserts that the said overdraft facilities were applied for and obtained by his company Sky-Nwagod Nig. Ltd, he ought to have tendered the resolution of the Board of Directors of the Company and Memo of the Company empowering the Company to borrow loans in order to comply with the provisions of Section 39 of CAMA Cap C20 Vol. 3 LFN 2004.
Learned counsel submitted further that, it is trite that one of the instances where court can use sledge hammer to crack open the “Corporate Shell of a Company is prevention of fraud”. So if Appellant fraudulently obtained the overdraft facility in the name of his company but it turns out that he personally used the fund, he Appellant, will personally be liable and not the company. Section 166 of CAMA Cap. C20 Vol 3 LFN. Could the Respondent have granted overdraft facilities to the Appellants company which has no account with her and yet did not demand for any security? The trial Judge carefully evaluated the evidence in this case before coming to its decision.  See:- Standard Engr. V. N.B.C. (2006) 137 LRCN Page 1330 ratio 1.
The Appellant filed a Reply Brief, dated 23rd December 2011, and submitted that it is wrong in law for the Respondent to formulate a lone issue for determination when the Appellant formulated two issues from the additional Grounds of Appeal as the Respondent has failed to answer all the issues in the Appellants Brief. See:- D.A. (Nig) A.I.E.P. LTD. V. Oluwadare (2007) 7 NWLR (Pt. 1033) 336 at 355. This court should therefore hold that the Respondent by not responding to the Appellant’s second issue for determination has accepted the legal arguments and the submissions raised in the No. 2 issue as formulated in the Appellant’s brief of argument and the issue should be resolved in favour of the Appellant.
Learned counsel further submitted that in the Respondent’s brief of argument, it was contended on page 4 that the fact that the applications for the overdraft facilities were made in the letter headed paper of Sky-Nwagod Nig. Ltd. by the Appellant is of no significance, as that does not mean that the overdraft facilities were automatically granted to the company. That submission is erroneous and misconceived as applications made by the letter headed paper of a company shows that such applications duly emanated on the authority of the company like in the instant appeal and by so doing the existing name of the principal is brought to known. The Appellant has revealed the identity of the company on whose behalf he acted which by indication means that the Appellant acted as an agent of a disclosed principal. See:- Orji V. Anyaso (2000) 2 NWLR (Pt. 643) 1 at 5 Ratio 1; Osigwe V. PSPLS. MGT Consortium Ltd. (2009) 3 NWLR (Pt. 1027) 378 at 381 Ratio 1.
Learned counsel submitted further that the Appellant testified that he is an executive Director of Sky-Nwagod Nig. Ltd and he has the approval of Board of Directors to apply for the loan, this statement is contained in page 59 of the record, this fact was never contested nor controverted by the Respondent and the Respondent was not a Director of Sky-Nwagod Nig. Ltd or that he did not have the power to act on its behalf. The issue not been contested or challenged is deemed admitted.  See:- C.D.C. 9 Nig. Ltd V. SCOA (Nig) Ltd (2007) 6 NWLR (Pt. 1030) 300 at 319.
Learned counsel further submitted that, the statement at page 5 of the Respondent’s brief that “so if Appellant fraudulently obtained the overdraft facility in the name of his company but it turns out that he personally used the fund the Appellant will personally be liable and not the company” is highly speculative. The court do not act on speculations and conjectures. In law there is nothing like it, but concrete evidence should be used to prove facts.  See:- Adisa V. State (1991) 1 NWLR (Pt. 168) 490 at 498; Ezemba V. Ibeneme (2004) 14 NWLR (Pt. 894) 617 at 640 Ratio 8; Ayogu V. Nnwamanyi (2004) 15 NWLR (Pt.895) 134 at 141 Ratio 11; Adetoun Oladeji (Nig) Ltd V. NB Plc (2007) 5 NWLR (Pt. 1037) 415 at 438 -439. The Appellant urged the Court to allow the appeal in its entirety.

On the part of the court, the first point to deal with, is the submission made by the learned counsel to the Appellant with regard to the lone issue formulated by the Respondent in answer to the two issues raised by the Appellant in arguing the appeal. Appellant contends that it is wrong in law for Respondent to do so, and that the court should hold that the Respondent by not responding to his second issue for determination has accepted the legal arguments and submissions raised by the 2nd issue. Appellant sought refuge in the decision of this court in D.A. (Nig) A.I.E.P. LTD V. Oluwadare (Supra).
First of all the Respondent in its brief of argument dated 8th December, 2011 filed on the 9th December 2011 raised a lone issue in answer to the two (2) raised by the Appellant. The law here is that there is no regimented order on formulation of issues from the grounds of appeal in so far as the issues does exceed the number of grounds contained in the Notice of Appeal, and secondly the issue or issues flow from those grounds. From the sole issue of the Respondent, argued in the brief, it is a clear answer to those 2 issues as formulated by the Appellant. If the lone issue and arguments proffered thereto have covered the ground of the Appellant issues and argument, the requirement of the law is met. In the instant appeal, this court condensed the two (2) issues formulated by the Appellant into one (1), for the effective management of the appeal. By the action of the court  the issue for the determination of both Appellant and Respondent are now on the same parity, while no aspect of the arguments of both issues 1 and 2 of the Appellant is left out. The court could have as well formulated its issues. It is trite law that this court has a wide and unfettered discretionary power to formulate its own issues in the interest of justice provided they relate to the grounds of appeal and flow therefrom.  In other words, an appellate court can formulate its own issues where in its opinion the issues formulated by the parties would not justly or equitably dispose of the appeal before it.  Further still, an appeal court can also in same manner prefer or adopt the issue or issues formulated by any of the parties to an appeal where same would enable it do justice to the appeal. Relevant and in support is the case of Agboreh & Anor V. Mimra & Ors (2008) 2 SCM 55 at 71 wherein the apex court said thus:-
“Finally, an appellate court can prefer an issue or issues formulated by any of the parties and can, itself and on its own, formulate an issue or issues which in its considered view, is/are germane to and is or are pertinent in the determination of the matter in controversy.  See:- the cases of Musa Sha (Jnr) & Anor V. Da Rap Kwan & 4 Ors (2000) 5 SCNJ 101; Lebile V. R.T.O.C & S. Church of Zion of Nig. Ugbebia & 3 Ors (2003) 1 SCNJ 463 at 479; Emeka Nwana V. Federal Capital Development Authority & 5 Ors (2004) 13 NWLR (Pt. 889) 128 at 142 -143 (2004) 7 SCNJ 90 at 99…”
The contention of the Appellant on the formulation of issues contained in paragraphs 2 and 3 of the Reply Brief in view of the above decisions of the Supreme Court cited, does not have a place in law.  Just for a mention that this court’s decision on D. A. (Nig) A.I.E.P Ltd V. Oluwadare (Supra) is basically on what a Respondent’s brief is, and not on formulation of issues.
Turning now to the main issue in the appeal. The issue as to the corporate status or personality of the companies of the Appellant, Sky-Nwagod Nig. Ltd and Nwagod Ventures Nigeria is not in dispute between the parties. The Respondent is in tandem with all the submissions of the Appellant on the numerous cases dealing with liability of an individual in respect of acts of a company starting with the locus classicus case of Solomon V. Solomon (Supra).  The main issue in this appeal in the opinion of this court is as aptly couched by the Respondent as his lone issue.  The question as to whether the action of the Appellant in applying for overdraft facilities from the Respondent in the letter headed paper of Sky-Nwagod Nigeria Limited automatically makes Sky-Nwagod Nig. Ltd liable for the payment of the overdraft facilities granted.
The Respondent as Plaintiff in the lower court had given evidence through their PW1. The said evidence can be found at page 51 of the record, particularly lines 13 -16 thereto. The Respondent stated:
“He (the Appellant here) overdraws his account to the tune of N950,000 in addition to the debit of N43,507.05.  The Defendant write his application for N950,000 to the Plaintiff in the letter headed paper of Sky-Nwagod Nig. Ltd.  Further the Defendant was allowed to withdraw the N400,000. These pieces of evidence which reflected in Exhibit 13 show clearly that it was same current account No. 10059 held by the Appellant in his business name that was overdrawn and not any other account. The money passed through Appellant’s bank account with Respondent’s bank.”
The Appellant did not, right from the lower court, to this court deny any of these facts as stated by the Respondent. The Appellant replied to these facts asserted by the Respondent at page ten (10) of his brief of argument dated  18th November 2011, particularly paragraph five (5) thereto as follows:
“We submit that the error of the Respondent in granting an overdraft facility to Sky-Nwagod Nig. Ltd who has no account with the bank bothers on the Respondent’s professional incompetence which the Appellant cannot be held personally liable for.”
The Appellant however admitted from above, he had overdrawn monies claimed in his current account No. 10059 which is in his business name of Nwagod Ventures Nig. He maintained that the application and the approval of the facility was made in an application he wrote with the letter head of Sky-Nwagod Nig. Ltd. The facility was given to Sky-Nwagod Nig. Ltd, which has no bank account with Respondent.  As a result of what he calls the professional incompetence of the Respondent, he cannot be held liable personally, for overdrawing the money, and enjoying same for his personal gain.
The learned trial Judge in his Judgment of the 14th April, 2010, on page 86 of the record, but more particularly on page 99 paragraphs 25 -30 thereto stated as follows:-
“It is trite law that the corporate veil of a company shall be cracked in the interest of justice, particularly where the company is used as a mask or sham by the director to avoid recognition in the eye of equity.  The Defendant who is a director of Sky-Nwagod (Nig) Ltd and had always known that the said company has no account with the Plaintiff has deliberately used the name of the company to apply for the loans on his account with the Plaintiff to avoid payment of the loan or monies he withdrew from his account with Plaintiff. There is no doubt in my mind that the transactions, the subject matter of this suit, were between the Plaintiff and the Defendant, and not between Plaintiff and Sky-Nwagod (Nig) Ltd.”
Now the question is, what is the significance of a heading of a document or a letter head of a document, vis a vis its content. The law has always been that, the heading of a document or even a letter head as in the instant case, is of no significance, or importance. What matters is the content of such document. This court is in full agreement with the findings of the learned trial Judge in his Judgment, when he stated it was a deliberate act by the Appellant to apply for the loan using the name of his other company on its letter head, which he knew does not have, or maintain an account, with the Respondent. This was to avoid payment of the loan or monies he withdrew from his account with Respondent. The content of that application no doubt is a transaction between the Appellant and the Respondent, and not between the Respondent and Sky-Nwagod (Nig) Ltd.
The law, has not left a vacuum on this subject. A title, which the letter head of Sky-Nwagod Nig. Ltd stands for, does not necessarily control the contents of the document. See:- Ogbonna V. A.G. Imo State (1992) 2 SCNJ 26 at 45.   It is a cardinal rule of interpretation of statutes that the heading cannot control the plain words of the statute (or a letter) as in this respect. The rule was expressed in R.V. Surrey Assessment Committee (1948) 1 K.B. 29 at page 32 by Lord Goddard, CJ in these words:-
“But while the court is entitled to look at the headings in an Act of Parliament to resolve any doubt they may have as to ambiguous words the law is quite clear that you cannot use such headings to give a different effect to clear words in the section where there cannot be any doubt as to the ordinary meaning.”
This is the law here in Nigeria. See:- Oke of Warri V. Chief Sam Warri Essi & Ors (1958) 3 FSC 94 at 97; Ogbonna V. A.G. Imo State (1992) 2 SCNJ 26 at 45;  The Registered Trustees V. Medical Health Workers (2008) 1 SCNJ 348 at 378; Artra Industries V. Nigeria Bank for Commerce and Industries (1998) 3 SCNJ 97 at 115; Peter Odofin V. Jimoh Oni (2001) 1 SCNJ 130 at 142.
In the instant appeal although the application was written on the letter head of Sky-Nwagod Nig. Ltd, it was intended that the transaction between parties to actualize in view of their existing relationship via account No. 10059 maintained by the Appellant with the Respondent. Based on these concrete facts, the Appellant was allowed through the same account to overdraw all the monies claimed. The Appellant has not, and never, ever denied overdrawing, and collecting all those monies.  He is liable in law to pay back all those monies in accordance with the agreement of the parties.
Let me state here and now, it is always said that the law is an ass. What of the people, or implementors of law, are they asses? I make bold to say no. I resolve the lone issue in this appeal against the Appellant, and in favour of the Respondent.
On the whole therefore, this appeal is devoid of any merit, it fails, it is hereby dismissed. The Judgment of Hon Justice C. O. Ogisi, of the High Court of Justice, Delta State, in the Owa-Oyibu Judicial Division, in Suit No. HCY/45/2005, delivered on the 14th of April, 2010, is hereby affirmed by this court.
Costs is assessed at N50,000 in favour of the Respondent and against the Appellant.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have read in advance the lead judgment of my learned brother, SIDI DAUDA BAGE, JCA. I am in full agreement with the reasoning and conclusion reached therein that the appeal fails.
In the circumstance, I adopt the lead judgment as mine and affirm the judgment of the lower court delivered on 14/4/2010 in Suit No..HCY/45/2005. I also abide by the order relating to costs.

TOM SHAIBU YAKUBU, J.C.A.: The draft of the judgment, rendered by my Lord, SIDI DAUDA BAGE, JCA was made available to me. I read it. I agree with the reasoning and conclusion therein. I only need to support it with a few words.
The conduct of the appellant is undoubtedly, characteristic of smart alecs, who erroneously think that a finger can be used to cover a person’s eyes from seeing the sun or the moon. It is amazing that after taking and enjoying the benefit of a loan facility, from an unsuspecting financial institution, such as the respondent herein, the appellant could turn round to erect a phoney legal road block in order to frustrate the repayment of the loan. But one cannot eat his cake and still have it!
The pieces of evidence extracted from the appellant under cross-examination at page 64 lines 12- 18 of the cold record of appeal to the effect that the Account No.10059 with the respondent belongs to the appellant and that “Nwagod Ventures Nig is my business name” and furthermore that:
“I am the signatory to the account No. 10059 of Nwagod Ventures Nig. I pay cheques of Sky Press Ltd and Sky Nig. Ltd into Nwagod Ventures Nig. for purpose of clearing”, undoubtedly gave out the appellant as the holder of the current account No. 10059, at all times, which he operated with the respondent, in his business name Nwagod Ventures Nig.
Undeniably, Exhibit P13 – the Statement of Account with respect to the operation and financial transactions on the appellant’s account No.10059 showed that the said account was overdrawn “to the tune of N950,000 in addition to the debit of N43,507.05.” see lines 13 -16 at page 51 of the record of appeal.
Now, the appellant admitted that he applied for the loan facility in question from the respondent, using the letter headed paper of Sky-Nwagod Nig. Ltd, which has no bank account with the respondent, and obtained the loan which he enjoyed for his personal gain. Is it equitable for the appellant to have turned round and blamed the respondent for its professional incompetence for approving a loan facility to Sky-Nwagod Nig. Ltd which had no account with the respondent? Is this not typical of the pot calling the kettle black? Could the appellant have been effectively shielded and hidden under the corporate veil of Sky-Nwagod Nig. Ltd by using its letter headed paper to obtain a loan facility which the former personally used up and contend that he is not personally liable? What was on the appellant’s mind when he applied and obtained the loan facility from the respondent, using the letter headed paper of Sky-Nwagod Nig Ltd, which he knew had no bank account with the respondent? And yet the said loan facility was obtained and used up by the appellant who overdrew his account No.10059 with the respondent to the time of the said loan facility. Did the appellant have clean hands?
I am satisfied with the resolution of the above nagging questions by the admirable reasoning of the learned trial judge in his judgment contained particularly at paragraphs 25 – 30 at page 99 of the record of appeal, to wit:
“It is trite law that the corporate veil of a company hall be cracked in the interest of justice, particularly where the company is used as a mask or sham by the director to avoid recognition in the eye of equity. The Defendant who is a director of Sky-Nwagod (Nig) Ltd and had always known that the said company has no account with the Plaintiff has deliberately used the name of the company to apply for the loans on his account with the Plaintiff to avoid payment of the loan or monies he withdrew from his account with Plaintiff. There is no doubt in my mind that the transactions, the subject matter of this suit, were between the Plaintiff and the Defendant, and not between Plaintiff and Sky-Nwagod (Nig) Ltd.”
That is the quintessence of justice. Law is a handmaid of justice and must always bow to justice!
In good conscience, the appellant ought to have been grateful to the respondent for granting a loan facility which he obtained and enjoyed, instead of turning round to accuse and indict the latter of professional incompetence. This reminds me of a not too dissimilar situation in PHILIP ADDA V. ALHAJI A.A. LIMAN (2012) 4 NWLR (PT.1290) 243 where the respondent advanced One Million, Six hundred and twenty five thousand naira (N1,625,000.00) only to the appellant to enable him execute a certain contract. The appellant promised to pay back the money within two months. He issued two cheques in order to satisfy the debt. Each of them bounced. However, he paid back N775.000.00 leaving a balance of N925,000.00. At the suit of the respondent money lender, the appellant pleaded that the respondent was not a registered money lender, with a license to carry out such business of money lending. The claim of the respondent succeeded at the trial High Court.
On appeal to this Court, this is what I said at page 262 of the report:
‘The defendant did not deny the fact that he issued two cheques exhibits ‘A’ & ‘B’ to the tune of N1,625M to the late A.A. Liman in his life time albeit that the two cheques bounced and were not cashed by late A. A. Liman. In good conscience, the defendant could not have denied the execution of exhibits K1 and K2 with the late A. A. Liman who had advanced the sum of N1,625M to him. Surely, if the defendant was not rich with the indebtedness of N1,625M to A. A. Liman in his life time, he cannot be expected to be rich living on a dead man’s N1925.000.00 now. I think the defendant should be wise enough and honour the dead man’s gesture to him.
Indisputably, exhibits K1 and K2 are documentary evidence which eloquently speak for themselves. Indeed, it is said that documentary evidence is the best form of evidence.
See: Yadis (Nig) Ltd v. G.N.I.C. Ltd (2007) 14 NWLR (Pt.1055) 584 at p. 610; Attorney Gen. Bendel State v. UBA Ltd. (1986) 4 NWLR (Pt.37) 547; Agbareh v. Minra (2008) 2 NWLR (Pt.1071) 378 at p.411.
I am satisfied with the usage of exhibits K1 and K2 by the learned trial Judge in favour of the Plaintiffs because the said exhibits added prosperity to their claim and poverty to the defendant’s defence. The learned trial Judge was determined to do justice and he commendably did so. And that is how it should be”‘
I also commend the learned trial Judge at the court below for doing substantial justice in this case.
With these few words of mine and the fuller reasons contained in the leading judgment, I dismiss this appeal as lacking in merits. I affirm the well considered judgment of C. O. OGISI, J., of the Delta State High Court, Owa-Oyibu, in suit No. HCY/45/2005 of 14th April, 2010.
I, too award N50,000.00 costs in favour of the respondent.