PRINCE JERRY OBEYA v. OKPOGA MICROFINANCE BANK LIMITED
(2019)LCN/13281(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of May, 2019
CA/MK/111/2014
RATIO
AGENCY: DEFINITION
In the Blacks Law Dictionary 8th edition page 68 an agent is defined as:
One who is authorized to act for or in place of another; a representative.”
As regards agency, I. T. Muhammad, JSC stated in Iyere v Bendel Feed and Flour Mill Ltd supra:
In the law of agency, the relationship which arises when a person called agent acts on behalf of another called Principal, whereby the latter undertakes to be answerable for the lawful acts the former does within the scope of his authority, is what amounts to agency.?
A contract made by an agent acting within the scope of his authority for a disclosed principal is in law the contract of the principal and it is the principal and not the agent that is entitled to sue or be sued upon such contract. Furthermore, acts of an agent with managerial status and with ostensible authority to act binds the principal whether such acts are for the benefit of the principal or not provided he is shown to have acted within the scope of his authority. See Iyere v Bendel Feed and Flour Mill Ltd supra and Vinz International Nigeria Limited v Morohundiya (2009) 11 NWLR (Pt. 1153) 562, 578 579.PER JOSEPH EYO EKANEM, J.C.A.
DEPOSITION: A WRITTEN DEPOSITION OF A WITNESS CANNOT BE REGARDED AS EVIDENCE EXCEPT IT IS ADOPTED IN PERSON BY THE DEPONENT HIMSELF
A written deposition of a potential witness cannot be regarded as evidence. It must be adopted in evidence by its deponent otherwise it is a useless piece of paper. See Idris v ANPP (2008) 8 NWLR (Pt. 1088) 1, 97 and 153. PER JOSEPH EYO EKANEM, J.C.A.
A COURT CANNOT MAKE USE OF EXHIBITS NOT PROPERLY ADMITTED BEFORE IT
It was not a part of the evidence led or exhibits tendered at the trial and the trial Court gave no opportunity to the parties to address on it before using it. A Court can only make use of exhibits properly admitted before it. See Chukwuma v FRN (2011) 13 NWLR (Pt. 1264) 391, 421.PER JOSEPH EYO EKANEM, J.C.A.
UNPLEADED FACTS MUST BE DISCOUNTENANCED
The above being evidence of unpleaded facts goes to no issue and must be discountenanced. See NIPC Ltd v Thompson Organisation (1969) NMLR 99, Enang v Adu (1981) 11/12 SC 25 and Sogunro v Yeku (2017) 9 NWLR (pt. 1570) 290.PER JOSEPH EYO EKANEM, J.C.A.
EQUITY AND TRUST: UNJUST ENRICHMENT: NATURE
In the case of Eboni Finance and Securities Ltd v Wole Ojo Technical Services Ltd (1996) 7 NWLR (Pt.461) 464, 478. It was held by the Court that the doctrine of unjust enrichment is a specie of constructive trust which is an instrument which the Court of equity must employ to prevent undue enrichment. Pats Acholonu, JCA, as he then was, held that:
The premise behind the doctrine of restituting an unjust enrichment is that justice be done therefore in consonance with the principles enshrined in the restitution remedy shall be available whenever the defendant is unjustly enriched at the expense of the plaintiff. In this case, respondents must be made to vomit out what they have taken (unjustly).? See also Idika v Uzoukwu (2008) 9 NWLR (Pt. 1091)34.PER JOSEPH EYO EKANEM, J.C.A.
UNJUST ENRICHMENT: DEFINITION
In the Black’s Law Dictionary 8th ed. Page 1573, unjust enrichment is described as:
“A benefit obtained from another intended as a gift and not legally justifiable, for which the beneficiary must make restitution or recompense.”PER JOSEPH EYO EKANEM, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
PRINCE JERRY OBEYA Appellant(s)
AND
OKPOGA MICROFINANCE BANK LTD Respondent(s)
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Benue State, holden at Okpoga (the trial Court) in Suit No. OKHC/5/2012 delivered on 11/3/2014. In the judgment, the trial Court dismissed the claim of the appellant (qua plaintiff) against the respondent (as defendant).
The case of the appellant against the respondent was that he invested the sum of N1,000,000:00 (One Million Naira) in a fixed deposit account on a monthly interest of N50,000:00 (Fifty Thousand Naira) with the respondent since 16/9/2009. The principal sum of N1,000,000:00 was deposited in the respondent?s account No. 38136043861101 through the Guaranty Trust Bank?s deposit slip No. D2087202 dated 16/9/2009. He wrote to the respondent informing it of the deposit and the agreed conditions and the respondent acknowledged the same by a letter written by its Managing Director, Mr Ogabo A. Michael. The appellant did not receive any interest and the respondent refused to return the principal sum inspite of demands for it to do so.
?On account of the foregoing, the appellant took out a writ of
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summons accompanied by a statement of claim for the following reliefs against the respondent:
?i) The sum of N1,000,000.00 (One Million Naira) only being amount outstanding against the defendant, resulting from the failure to pay back the plaintiff?s money in fixed deposit account in the defendant?s bank.
ii) The sum of One Million, Four Hundred and Fifty Thousand Naira (N1,450,000.00) only being amount outstanding against the defendant as interest accrued to the plaintiff at N50,000.00 (Fifty Thousand Naira) only since 16th/9/2009 at every thirty (30) days as at January, 2012.
iii) The sum of N50,000.00 (Fifty Thousand Naira) only as interest on the principal sum from February, 2012 until judgments is delivered.
iv) General damages of 10% of the entire sum (both the principal sum and interest) at the time of judgment for inconveniences and embarrassment.?
The respondent, on its part, filed, inter alia, a statement of defence denying appellant?s claim. The defence of the respondent was that the transaction was a private transaction between the appellant and Ogabo A. Michael, its former Managing Director.<br< p=””
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An application by the appellant for the trial Court to enter summary judgment in the sum contained in the statement of claim was refused by the trial Court; the matter was transferred to the general cause list for trial.
At the trial, appellant testified for himself as PW1 and called no other witness. Five exhibits were tendered through him, namely; Exhibits A, B, C, D and E. The respondent testified through one witness, DW1, through whom Exhibit F was tendered, to wit; the written deposition of Ogabo A. Michael. After taking addresses, the trial Court, as earlier stated, dismissed the case of the appellant.
Aggrieved by the decision, the appellant appealed to this Court by way of a notice of appeal filed on 28/4/2014 which incorporates six grounds of appeal. Appellant?s brief of argument was filed on 20/7/2017 while the respondent?s brief of argument was filed on 21/8/2017.
At the hearing of the appeal on 8/4/2019 and in the absence of appellant and his counsel, though served with hearing notice, this Court, based on Order 19 Rule 9 (4) of the Court of Appeal Rules, 2016, deemed the appellant to have argued the appeal based on his
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brief of argument. Reginald Owualah, Esq. (holding the brief of P.A. Omengala, Esq.) adopted the brief of argument filed on behalf of the respondent in urging the Court to dismiss the appeal.
In the appellant?s brief of argument two issues are distilled from the six grounds of appeal for the determination of the appeal. The issues are:
?1. Whether the Court below was right in holding that the claim of the plaintiff (Appellant) is not against the Defendant (Respondent) but rather a 3rd party, despite the fact that the 3rd party was an employee of the Defendant (Respondent) as at the time of the transaction in question, distilled from grounds 1, 4 and 6 of the notice of appeal.
2. Whether or not the lower trial Court was right in dismissing the claim of the Appellant as plaintiff before it merely on the ground that a matter with substance similar to it had been struck out previously, Distilled from grounds 2, 3 and 5 of the notice of appeal.?
The respondent, in its brief of argument settled by P.A. Omengala, Esq., adopts the two issues formulated by appellant?s counsel. I will therefore adopt the two issues for the
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purpose of the determination of this appeal. I intend to start with issue 2.
Issue 2
Whether or not the lower trial Court was right in dismissing the claim of the appellant as plaintiff before it merely on the ground that a matter with substance similar to i
