United Bank for Africa Plc V. Hon. Sunday Johnson & Anor. (2008)
LawGlobal-Hub Lead Judgment Report
M. A. OWOADE, J.C.A.
This is an appeal against the judgment of Hon. Justice M. O. Eneji, J. sitting in the Calabar Division of the Cross River State High Court delivered on 31th March, 2006.
The 1st Respondent as Plaintiff issued a writ of summons against the Appellant and the 2nd Respondent as Defendants on19th October, 1999. This writ was followed up by a Statement of claim dated and filed on 26/11/99 whereof the Plaintiff claims from the Defendants as follows:
(i) The sum of N377, 262.50 being the outstanding balance of the sum illegally debited by the Defendants from the Plaintiff account on 28/5/99 and interest of 35% per- annum on the said sum from 28/5/99 until repayment is made.
(ii) An order to the Defendant to immediately ‘unblock’ the Plaintiff’s account No. 202086779 with the Defendant Bank, that is by allowing the Plaintiff to operate the said account by himself for himself without let or hindrance and to credit Plaintiff’s account with N1.956 million outstanding fees.
(iii) An Order restraining the Defendants by themselves, their agents, servants, from tampering, moddeling, manipulating and/or operating the Plaintiffs account except for those entries interest or charges which bankers would ordinarily charge or debit to their customer’s account in the normal course of business.
(iv) An Order restraining the Defendants from arresting or formulating the arrest and/or detention of the Plaintiff by the Police for imaginary crimes relating to the operation of the Plaintiff’s account with the Defendant.
(v) An Order restraining the Defendant or their agents from further publishing or causing to publish falsehood and malicious materials concerning the Plaintiff.
(vi) N50, 000,000.00 as aggravated damages for unauthorized operation of Plaintiff’s account No. 202086779 and for false and malicious publication against the person of the Plaintiff as well as for unlawful arrest and detention of the Plaintiff.
The relevant pleading of the 1st Defendant/Appellant before the lower court is the Amended Statement of Defence and counter-claim filed on 12/7/2004. The 2nd Defendant/Respondent did not file any pleadings. The Plaintiff/Respondent however relied on his Reply and Defence to counter-claim dated 28/7/2004 and filed on 30/7/2004. The Appellant as 1st Defendant before the lower court counter-claimed.
Para.30: Wherefore the 1st Defendant counter claims jointly and severally against the Plaintiff and the 2nd Defendant as follows:
Special Damages:
(i) N11, 750, 297.61 million being payment plaintiff was not entitled to and moneys withdrawn from his account.
(ii) N2 million being payments not reflected in account
(iii) N4.3 million pending and unpaid vouchers.
General Damages of N5million
The facts of the case are as follows. In May 1999, the 1st Respondent opened a Current Account with the Appellant for the specific purpose of lodging the fees that was due for his professional services in facilitating the payment of Mobil Oil Spillage Compensation claims to some claimants from the five coastal Local Government Areas in Cross River State. The Appellant through the 2nd Respondent agreed to assist the 1st Respondent by collecting the agency fee from the various claimants at the point of payment and credit same to the 1st Respondent’s account. In the course of the exercise, some claimants whose names were not short listed for payment by Mobil obtained an order of injunction to stop the payment. Consequently, some claimants who had collected their cheques but could not cash them due to the injunction surrendered those cheques to the 1st Respondent who cleared them through his account and kept the funds in that account until the injunction was discharged.
At a point in time, the 1st Respondent noticed that the Appellant had without his knowledge or consent withdrawn the sum of N577, 250.00 from his account through a bank cheque (bank draft) in favour of one Eyo Nsa Ekpo. When the 1st Respondent complained, the Appellant refunded N200, 000.00 to him. The 1st Respondent nevertheless wrote a further letter of protest, to which the Appellant responded by freezing his account, and by reporting the 1st Respondent to the Police for using his account to perpetrate fraud. Whereupon, the 1st Respondent commenced this suit against the Appellant. The Appellant in its defence counter claimed against the 1st and 2nd Respondents for a total of more than N18 million in special damages and N5 million in general damages for an alleged fraudulent opening and operation of the Respondent’s account.
At the trial the 1st Respondent called four witnesses in support of his case and the 1st Defendant/Appellant called one witness in its defence and counter-claim. In his judgment the learned trial Judge allowed the Plaintiff’s claims, dismissed the Appellant’s counter claim and awarded N150, 000.00as general damages.
Dissatisfied the Appellant appealed against the decision on the nine grounds of appeal set out in its Amended Notice and Grounds of Appeal deemed filed on 23/10/07.
The Appellant’s brief of argument dated 4/5/07 was filed on 9/5/07. The 1st Respondent’s Amended brief of argument dated 7/11/07 was filed on 5/12/07. Appellant’s Reply brief was filed on 12/12/07.
Appellant formulated the following four issues for determination:
1. Whether the trial court has not by its judgment allowed the Plaintiff/Respondent to benefit from his own wrongful conduct/illegality.
2. Whether the Appellant was rightly held vicariously liable by the trial court for the conduct of the 2nd Defendant/Respondent who was clearly acting in collusion with the Plaintiff and outside the scope of his duty and express instructions.
3. Whether the trial court was entitled to suo motu disregard and/or reject pleaded documents agreed to be tendered without objection.
4. Whether the 1st Defendant/Appellant was entitled to its counter-claim.
The 1st Respondent on the other hand formulated the following issues:
1. Whether the Appellant has proved that the funds in the 1st Respondent’s account with the Appellant bank were the proceeds of fraud.
2. Whether in the circumstances of this case the trial court was right to hold the Appellant vicariously liable for the actions of the 2nd Respondent, it’s Branch Manager.
3. Whether the Appellant is entitled to its counter-claims in this suit.
This appeal shall be decided on the issues formulated by the Appellant.
In arguing Issues 1, 2 and 3 together, learned Counsel for the Appellant opened up by saying that the Plaintiffs/Respondent’s testimony on page 52 of the record to the effect that he gave N150.000.00 as an incentive on public relation ground and not because his transaction with the 2nd Respondent was illegal was wrongly ignored completely and not mentioned in the judgment. Counsel submitted that Section 18 of the Banks and other Financial Institution Act (BOFI) which criminalized the act of a Bank Manager who “benefits as a result of any advance, loan or credit facility granted by the Bank” makes the plaintiffs testimony to be unlawful with the inescapable -conclusion that the court did not advert to the law on the matter, did not understand the case-of the Appellant and wrongly evaluated the evidence before it as it allowed the Plaintiff/Respondent to benefit from conduct criminalized by statute.
Appellant’s Counsel further pointed out that Section 20(1) (b) of the same BOFI Act, prohibits loans, advances and credit facilities unless authorized in accordance with the bank’s (i.e. Appellant’s) rules and regulations. And that DW1 testified from pages 65-75 of the record, that there was no such authority in this case. The conduct of the Plaintiff/Respondent and the 2nd Defendant/Respondent readily excused by the court, said Appellant’s Counsel is also criminalized by Sections 47 and 50 of the BOFI Act. That apart from prohibiting the conduct of the Respondents, Section 47 of the BOFI Act, allows the Appellant to take further steps such as reporting to the police, stopping the operation of the suspect’s account and conducting its own internal investigations.
Appellant’s Counsel furthered that Exhibit N, the Memorandum, stating how the oil spillage account was to be handled was ignored by the 2nd Defendant/Respondent who rather colluded with the Plaintiff/Respondent to act outside the directives/instructions of Appellant. Relying on the cases of AeroFlot Soviet Airlines vs. United Bank for Africa PLC (1986) 5 SC 217 at 270 and Union Bank of Nigeria Plc v. Emole (2001) 18 NWLR (Pt. 745) 501, Appellant’s Counsel submitted that in such situation there is absolutely no liability on the Appellant.
Appellant’s Counsel submitted that all the vouchers/cheques paid into the Plaintiffs/Respondent’s account belong to 3rd parties and not to the Plaintiff/Respondent nor to the Local Government Chairmen who donated powers of attorney (Exhibits C-C4) neither to the 1st Respondent nor to their Council Governments.
Learned Counsel for the Appellant submitted-that a principal can only issue a power of attorney to an agent to act for him the Principal. He cannot issue power to act for a third party or to collect third parties monies. Counsel referred to pages 120 – 121 of the record where the trial court noted that
“It is the evidence of the Plaintiff (PW1) and that of his witness (PW4) that after a verification exercise a list of names of claimants was drawn up and submitted to Mobil Oil Producing Company. That the said company had shortlisted the names of claimants to be paid compensation, for which payment vouchers and cheques were drawn up in their names for payment through the 1st Defendant Company (UBA)…”
Yet, said Appellant’s Counsel, the Plaintiff/Respondent himself further went on to state that – not all the claimants paid the 20% deduction to him, as some of the claimants hired a lawyer to process, collect and pay their claims to them. Appellant’s Counsel added, that the particulars of those who did not were not before the court, the list of names of beneficiaries was not before the court. Powers of Attorney from the beneficiaries was not before the court. And that after it was confirmed that payment was to be through the Appellant, the court still disbelieved the Appellant when it testified that payment was not to be through the Plaintiff/Respondent.
Appellant’s Counsel submitted that the learned trial Judge was wrong to have accepted the Plaintiff’s/Respondent’s evidence that Rufus Ade- 2nd Respondent and Mrs. Uyama – another staff of the Appellant agreed with him that 20% commission be deducted and paid into Plaintiffs/Appellant’s account. According to Appellant’s Counsel, the Local Government Chairmen had no power, right or authority to issue powers of Attorney for the appropriation of third parties monies as the beneficiaries in this case.
The law, said Appellant’s Counsel is that the Plaintiff must succeed on the strength of his own case and not on the weakness of the defence, that the Plaintiff had to prove all payments into and withdrawals from his (Plaintiff) account and that the learned trial Judge was wrong to have accepted the Plaintiff’s testimony which was denied by DW1 and therefore wrongly ordered at page 143 that “The 1st Defendant is to refund to the Plaintiff the sum of N,377, 000.00 being the balance from the N,577,000.00,withdrawn from the Plaintiffs account by the 2nd Defendant on a UBA Managers cheque, not accounted for by the 1st Defendant.”
This order, said Appellant’s Counsel is with respect, not supported by credible evidence.
Learned Counsel for the Appellant also submitted that further evidence that the Plaintiff/1st Respondent knew he was into an irregular and fraudulent arrangement was his contradictory evidence that he was not issued cheque books until about 2 weeks when he opened the account with the Appellant bank, when in fact by Exhibit F, the statement of account tendered by him (the Plaintiff/Respondent) he made cheque withdrawal on the same day 12/5/99 with cheque No. 4418101 and later on 17/5/99 with cheque No. 4418102.
Relying on the case of Ishola v. Societe Generale Bank (Nig) Ltd. (1997) 2 SCNJ 1, Appellant’s Counsel submitted that without showing evidence of ownership of the monies and how he paid them into that account, Plaintiff/Respondent is not entitled to them.
Appellant’s Counsel submitted that if this court finds that in fact other person’s monies were paid into Plaintiffs account then that conduct cannot be that of a man of repute and distinction in his possession and society. Further, that a man of proven integrity would have secured power of Attorney directly from the owners of the cheques instead of some politically elected officers claiming to act for them. And that the admission of the Plaintiff/Respondent at page 50 of the record that he signed terms of settlement disputed in Exhibit K by the Appellant on behalf of Mobil Producing Company and the Appellant without their consent does not also depict the Plaintiff/Respondent as a man of repute.
Appellant’s Counsel submitted that the rejection of the Police interim Report marked ID2 by the trial court shows that the trial court was too ready to find for the Plaintiff. On Issues 1, 2 and 3, learned Counsel for the Appellant, relying on the cases of Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566 at 592, UBA Plc vs. Abdulahi (2003) 3 NWLR (Pt. 807) 359, finally submitted that the Appellant was wrongfully held vicariously liable for the conduct of the 2nd Defendant/Respondent who acted upon inducement from Plaintiff outside the laws of the land and express instructions (Exhibit N). That fraud vitiates even the most solemn transactions.
The response of the 1st Respondent to Appellant’s Issue Nos. 1, 2 and 3 are contained in the Respondent’s Issues Nos. 1 and 2. Learned Counsel for the 1st Respondent identified three excuses why the Appellant freezed the 1st Respondent’s account. The first excuse was that the 1sl Respondent violated the Banks and Other Financial Institutions (BOFI) Act by inducing its Branch Manager, the 2nd Respondent to grant him an overdraft of N150, 000.00when he had a nil balance in his account.
The second excuse for freezing the 1st Respondent’s account was that the 1st Respondent was not entitled to the 20% agency fees collected from the beneficiaries of the oil spillage compensation.
The third excuse was that the full values of some compensation cheques (called bulk payments) were credited fraudulently into the 1st Respondent’s account.
On the first excuse learned Counsel for the Respondent submitted that it is an after thought because the Appellant froze the 1st Respondent account long after the overdraft had been repaid. It was a 24 hour overdraft granted on 12th May, 1999 and paid back the next day.
It is therefore absurd for the Appellant to argue that the 1st Respondent gave N150, 000.00 as an inducement to borrow the same N150, 000.00 with interest for just 24 hours. Respondent’s Counsel submitted that Section 47 BOFI Act does not prohibit banks from giving overdraft to customers with his balance but only prohibits gifts to bank staff which are meant to:
(I) secure a loan, an advance or credit facility
(II) Discount a cheque, bill of exchange, bank obligation etc. or
(III) Enable a person to overdraw an account without authority.
To prove the fraud alleged it is therefore not enough for the Appellant to say that the 1st Respondent obtained an overdraft on a nil bank to some bank staff. The Appellant had a duty in law to state in its pleadings sufficient particulars of facts and circumstances that would make the 151 Respondent’s overdraft or cash gift a crime under the BOFI Act or under any other law. In this case, said Respondents’ Counsel the Appellant did not even tender the Bank Rules and Guidelines on the grant of overdraft which it alleged its Branch Manager vitiated. Respondent’s Counsel submitted that the so called fraudulent violation of the BOFI Act was therefore not substantiated and the trial court was perfectly right to discountenance the excuse. Learned Counsel for the Respondent expressed surprise at the second excuse by the Appellant in spite of DW1’s evidence that: ‘None of the persons whose 20% was deducted in favour of the Plaintiff from the oil spillage compensation fund …. has come to ask the bank to sue the Plaintiff for the return of their 20% (page 80 of the record). In effect, said Respondent’s Counsel, the Appellant is complaining on behalf of third parties who are not in anyway aggrieved about the fees they paid to the 1st Respondent.
Respondent’s Counsel submitted that the Appellant cannot seriously contend that the 1st Respondent who has rendered useful professional services was not entitled to the fee that was paid to him without complaint by those who benefited from his services.
Learned Counsel for the Respondents, submitted contrary to the Appellant’s position that even one of the beneficiaries later signed a document as in Exhibit D-D4 in which they expressly stated that ‘I therefore… accepted that a total of 20 per centum be deducted at source for administrative-expenses, payment logistics and professional fees in accordance with the power of Attorney issued by my Local Government Council to Messrs Soni Udom and Partners’. Respondent’s Counsel then submitted that every beneficiary that signed that document effectively ratified and accepted to be bound by the powers of Attorney earlier given to the 1st Respondent by the five Local Government Chairmen. On this, Counsel relied on the case of Vulcan Gases Ltd. vs. Gessell Shaft Fur Industries Gasver Wertung A. G (2001) FWLR (Pt. 53) 1 at 24 and extended the authority of the case to say that even if there were no such documentation, the mere fact that the beneficiaries had accepted the services of the 1st Respondent and paid him his fee of 20% of their entitlement without complaint was enough in law for the court to infer the existence of an agency between the beneficiaries and the 1st Respondent.
Respondent’s Counsel submitted that the Appellant’s argument that the 20% agency fees were wrongly paid into the 1st Respondent’s account is therefore an untenable excuse for freezing the account. It is not the place of the Appellant to complain about a contract between 1st Respondent and third parties who are not in any way dissatisfied with the bargain they had struck with the 1st Respondent.
On the third excuse, that is the payment of the bulk payment of compensation cheques into the 1st Respondent’s account, Respondent’s Counsel submitted that evidence was led by PW1 as to the circumstances under which the money was paid into the 1st Respondent’s account. Also, that PW4 one of the Local Government Chairmen involved corroborated the evidence of PW1 on this score in every material particular. Counsel submitted that the Appellant’s argument that the cheques were in the names of the beneficiaries and should not have been paid into the 1st Respondent’s account is untenable. He said it is a common banking practice for the drawee of a cheque or similar negotiable instruments to endorse his cheques or instrument to a third party (the endorsee). Counsel referred to the evidence of DW1 (page 67 of the record) that the cheques were payable across the counter to beneficiaries who had no account with the bank. Respondent’s Counsel furthered that, indeed, the Appellant saw nothing wrong with the beneficiaries endorsing their cheques to the 1st Respondent and duly accepted those cheques for payment into the 1st Respondent’s account. That neither Mobil the drawer of those cheques) nor the beneficiaries. (The drawees of the cheques) have complained to the Appellant that their money was wrongly paid to the 1sl Respondent (the endorsee). And that, it is therefore illogical for the Appellant to complain about the transaction, especially in view of the uncontroversial evidence that the 1st Respondent eventually paid the value of those cheques to the various beneficiaries when the court injunction was lifted.
On the complaint of the Appellant that IDII (the Police interim Investigation Report) was wrongly rejected, learned Counsel for the Respondent submitted that the rejection of the document was for good reasons because what was tendered was secondary evidence of a public document and by law only a Certified True Copy of such a document is admissible. Respondent’s Counsel relied on the case of Okoh vs. Igwesi 2005 ALL FWLR (Pt. 264) 891 and added that the Appellant’s argument that the document should have been admitted since there was no objection to it, is equally untenable because a court is bound by law to reject an uncertified public document even where there is no objection to its admissibility Umagbia vs. Aiyemhoba 2002 FWLR (Pt. 132) 192.
Respondent’s Counsel said that apart from the feeble complaint about the refusal to admit the Police interim investigation report, the Appellant had not shown in their brief how the admission of that document could have improved their case. He said, relying on the case of Ogualaji vs. Attorney General Rivers State (1997) 5 SCNJ
240 at 248 that it is not enough to complain that the evidence was wrongly rejected, the party complaining must also show that if the evidence had been admitted the decision in question would have been otherwise. Respondent’s Counsel submitted that had the trial court admitted the Police Interim Investigation Report IDII in the manner it was tendered, the document would have been of no probative value to the Appellant.
The report, he said, should have been tendered through the maker of the document or a Police Officer involved in the investigation who can then be cross-examined on the content of the report. Rather, said Respondent’s Counsel, the document was tendered through DW1 who did not prepare the report and is not even a Police Officer. Counsel submitted that an investigation report tendered through a third party is hearsay evidence and a court is bound by law not to attach any probative value to such a document. On this, Counsel relied on the cases of Olasehinde vs. ACB Ltd (1990) 7 NWLR (Pt. 161) 180 Flash Fixed Odds Ltd v Akatugba (2001) FWLR (Pt.76) 709 and added that in any event the Police in this case did not say in their interim report that the alleged-fraud had been established. Their report was that investigation into the case is still in progress. You will be informed in due counsel of the outcome of out investigation… ” In other words, said Respondent’s Counsel, as at the time of the interim report, the alleged fraud had not been established hence the ongoing investigation.
The final Police Investigation Report, he said was not produced by the Appellant in this case, but obviously the final report did not establish the alleged fraud because the 1st Respondent was never prosecuted.
Finally on issues Nos. 1, 2 and 3, Respondent’s Counsel submitted that the Appellant failed woefully to prove beyond reasonable doubt that the 1st Respondent’s account was a ‘fixed account’. That, the Appellant has curiously blamed the trial court for not placing on the 1st Respondent the burden to prove that the money in his account belonged to him. In other words, the Appellant expected the court to presume that the 1st Respondent stole the money unless he can prove that he didn’t. This position, said Counsel has never been the law in this country because by Section 138(2) of the Evidence Act ‘The burden of proving that any person has been guilty of crime or wrongful act is on the person who… asserts it…’ In this case, said Respondent’s Counsel, the Appellant has not been able to discharge that burden of proof beyond all reasonable doubt as required by law.
The trial court, said Counsel was therefore right to order the Appellant to defreeze the 1st Respondent’s account to give him free and normal access to his money.
Respondent’s Counsel submitted further that the 1st Respondent was clearly entitled to his credit balance of N1, 038,443.90 in that account and as the 1st Respondent was injured by the Appellant’s inexcusable refusal to honour his cheques on the frozen account, the trial Judge’s award of N150,000.00 as general damages cannot also be faulted.
In his Reply brief, in relation to the responses on issues Nos. 1, 2 and 3, learned Counsel for the Appellant submitted that the Appellant’s complaint on Issues Nos. 1, 2 and 3 is not limited to fraud but also covered wrongful conduct, illegality and irregularity. That repayment of the overdraft within 24 hours was not the Respondent’s case and that whether the payment was before or after the overdraft does not disqualify it from being an inducement. That, at any rate, credit facilities including overdrafts are not grantee on tile day of opening of the account without collateral. On the issue of the common banking practice of endorsing was to third parties Appellants Counsel responded that the evidence of be cheques so endorsed was not before the lower court. He submitted further relying on the case of Abdul v. Benue State University (2003) 15 NWLR (Pt. 945) 59, that the Appellant was entitled to tender the report ID II that came directly to it upon its own complaint as long as it is a relevant document and added that he Respondent has attempted to mislead the court on ID II. He continued, had it been admitted the court would have found that:
(i) On becoming aware of the irregularity in the account the Appellant took the proper step and reported to the Police.
(ii) Mr. S. Akpan said to be a Mobil staff who participated in the exercise was non-existent.
(iii) The irregular (wrongful) relationship between the 1st and 2nd Defendant would have been discovered.
Learned Counsel for the Appellant concluded in his Reply brief that, Appellant, if made vicariously liable, it will be tantamount to rewarding bank irregularity perpetrated at the instance of the Respondent.
Appellant’s Issue Nos. 1, 2 and 3, which was argued together, have in the main tried to show collusion and fraud as between the Respondents in the opening and operation of the 1st Respondent’s account with the Appellant and by so doing to create a defence as against the principle of vicarious liability imposed on the Appellant. The facts which the Appellant now canvass in proof of the fraud and or irregularity include:
(a) The gift of N150, 000.00 by the 1st Respondent to the 2nd Respondent and other staff members of the Appellant contemporaneously with the opening of the 1st Respondent’s account.
(b) The fact that the various cheques issued in the names of the beneficiaries were improperly lodged into the 1st Respondent’s account.
(c) The lack of authority or sufficient authority for the 20% agency commission to be deducted from the monies lodged by the beneficiaries and paid into the 1st Respondent’s account.
(d) The inability of the1st Respondent to operate proper power of authority from the beneficiaries and from the onset to charge 20% as agency fees.
The simple answer provided by the Respondent to the N150, 000.00 gift to the 2nd Respondent and other staff of the Appellant is that the pleadings and evidence did not lead to any suggestion that there was fraud or that the gift was an inducement for the purpose of opening a ‘fraud account’ or to perpetrate fraud. Perhaps, the learned trial Judge in this case went rather far when he noted at page 132 of the record that “Consequently, the exercise of the manager’s discretion was prudent and in accord with good banking strategy…”
Nevertheless, even from the evidence of DW1, in spite of the statement that the Branch Manager by then (Mr. O. Ade Rufus) – 2nd Respondent made mistakes in the opening and operating of the Plaintiffs/1st Respondent’s account and the more specific one that a bank account cannot be opened with a nil balance.
The same DW1 admitted
(I) that there is nothing wrong for the Plaintiff to have opened a private account with the 1stDefendant.
(II) The Plaintiff’s account was opened with at least two other officers of the Bank involved.
(III) All the Bank management staff at that time knew about the payment of the oil spillage compensation.
(IV) Between 12th and 14th May, 1999, the 20% fee due to the Plaintiff, from the compensation paid to the beneficiaries amounts to over N150, 000.00
(V) The guidelines of the Bank Exhibit ‘N’ is an internal memo.
The Plaintiff is not a Bank staff and as such, not entitled to a copy of the Bank’s guidelines.
Meanwhile, in his findings on review of evidence, the learned trial Judge found at page 132, that:
(1) The Manager was fully aware that N47 Million was standing in the oil spillage account of Mobil Producing, in the custody of the 1st Defendant (Appellant).
(2) The Manager was satisfied that the Plaintiff had the Attorney to charge 20% professional fee from beneficiaries of the said oil spillage compensation.
(3) The Manager was aware that the commission on turnover (COT) to the Bank will payoff the overdraft facility and substantially benefit the 1st Defendant (Appellant) in a very short term.
With the totality of the findings of the learned trial Judge on the evidence as regards the opening of account by the 1st Respondent and the gift of N150, 000.00 to the staff, it is obvious that neither fraud nor recklessness was established at the lower court against the Respondents by the Appellant.
The attempt by the Appellant in this case to invoke the provisions of Sections 18, 47 and 50 of the BOFI Act which criminalized certain conducts by the Manager or other officers of a bank does not add anything to the problem of proof that confronted the Appellant in the trial of the instant case. This is because whether fraud is sought to be established in a civil matter as in the present case by the Appellant or sought to be established under the penal provisions provided under the BOFI Act, the important thing is the establishment of such conduct by whoever alleged same. The criminalization of certain conducts under the BOFI Act does not by that and for the mention establish the proof of such conduct in a civil action based on similar conducts. The law relating to the burden of proof must be followed and the party who carries a burden in a particular case, civil or criminal must discharge such burden before judgment can be entered in his favour.
Section 137 of the Evidence Act provides for the burden of proof in civil cases. The burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side regard being had to any presumption that may arise on the pleadings. If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively until all the issues in the pleadings have been dealt with where there are conflicting presumptions, the case is the same as if there were conflicting evidence.
By the section, the burden of proof is not static. It fluctuates between the parties. Subsection (1) places the first burden on the party against whom the court will give judgment if no evidence is adduced on either side. In other words, the onus probandi is on the party who would fail if no evidence is given in the case. Thereafter the second burden goes to the adverse party in virtue of subsection (2). And so the burden change places almost like a ping-ball until the issues in the pleadings have been dealt with. Clearly, on the basis that a party who asserts must prove, the burden of proving fraud or the fraudulent opening and/or operation of the 1st Respondent’s account in this case lies on the Appellant who asserts the positive. In other words, he who asserts must prove. The rule is justified principally because it is but just that he who invokes the aid of the law should be the first to prove his case, and partly because in the nature of things a negative is more difficult to establish than an affirmative.
Section 137 (1) appears to be an enactment of the common law rule of Ei qui affirmat non ei qui negat incumbit probabio. The rule was invoked by Lord Maugnam in Constatine Line vs. Imperial Smelting Corporation (1942) AC 154 at p. 174, where the learned Lord said:
“The burden of proof in any particular case depends on the circumstances in which the claim arises. In general the rule which applies is Ei qui affirmat non ei qui negat incumbit probabio. It is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons.”
See also, John Ogbu vs. Best Wokoma (2005) 7 SCNJ 299 at 314 – 315.
In his Reply brief the Appellant sought to reduce the nature of the burden of proof placed on it, when it submitted that its complaints also covered wrongful conduct, illegality or irregularity.
Obviously, neither fraud nor illegality was proved from the pleadings and evidence considered in the instant case. Unfortunately, the complaint of irregularity in the opening and operating of the 1st Defendant’s account cannot stand. This is because; the 1st Defendant remains a third party vis-a-vis, the inner workings or internal arrangements of the Appellant’s bank, which concerns only the Appellant and the 2nd Respondent. For example, even DW1 described Exhibit ‘N’ the guidelines of the Appellant Bank as an internal memo of which the 1st Respondent is not entitled to a copy. In this situation, the age long doctrine of Omnia presumbutor rise esse acta applies, that is the 1st Respondent in the instant case is entitled to presume that everything is regular between the 2nd Respondent who acted in the shoes or position of the Appellant and the Appellant Bank itself. This is more so, when the Appellant Company cannot act or speak on its own. A company is a legal abstraction, an artificial person, it can only act and speak through the instrumentality of human beings or natural persons who will act and speak as the company.
The above has been given flesh by Lords Haldane and Reid in Lennards Carrying Company vs. Asiatic Petroleum Limited (1915) A.C. 703, 713 – 714 and Tesco Supermarkets Ltd. vs. Nattrass (1971) 2 WLR 127 at 131 that Corporation is an abstraction and has no mind of its own any more than it has a body of its own and that while a living person has a mind, which can have knowledge or intention or be negligent and has hands to carry out his intentions, a corporation has none of these. It must, therefore, act through living persons with the resultant attribution of liability for acts carried out by those human beings.
The second leg of the Appellant’s submission on his argument on Issue Nos. 1, 2 and 3 as argued together concerns the supposed inability of the 1st Respondent to operate such an account without proper power of Attorney from the beneficiaries and relatedly the fact that the various cheques issued in the names of the beneficiaries were improperly lodged into the 1st Respondent’s account.
The response by the Respondent on this score is first that an agency relationship was created between the Local Government Councils who donated the powers of Attorney and the 1st Respondent donee and that if any ratification of that agency relationship was required it would be found in Exhibits D-D4.
Secondly, that the Appellant cannot now be heard to complain on irregularities. If any on the lodgment of cheques, the 2nd Respondent and one Mrs. Oyama – officials of the Appellant having agreed with him (the 1st Respondent) as to the lodgments as well as the 20% commission to be deducted into the 1st Respondent’s account. That the Appellant through the 2nd Respondent and others not only carried out the instructions of the 1st Respondent but also benefited by way of COT – Commission on Turnovers which accrued to the Appellant from time to time on the said transactions.
First, I agree with the learned Counsel for the Respondent that an agency relationship was created between the 1st Respondent and the beneficiaries that the former should act for them to collect the oil spillage compensation money and that 20% per head of the moneys collected shall be paid into the 1st Respondent’s account as his professional fees as an Estate Valuer.
In Vulcan Gases Ltd. vs. Gessell Shaft (supra) at page 53, Uwaifo JSC speaking for the Supreme Court said:
“Agency exists between two persons when one of who expressly or impliedly consent that the other should act on his behalf……….. And the other of whom similarly consents to so act. The authority thereby created is called actual authority… in general no formalities are required for the creation of agency so unless otherwise provided by or pursuant to any statute an agent may be appointed by deed, by writing or by word of mouth.”
Truly, but without so holding if the powers of Attorney donated by the Local Government Councils could not vest the agency between the 1st Respondent and the beneficiaries in this case, the evidence of the 1st Respondent on the commitment of individual beneficiaries on the clearance forms of which samples were tendered in Exhibits D-D4 shows that every beneficiary that signed the clearance form effectively ratified and accepted to be bound by the power of Attorney earlier given to the 1st Respondent by the five Local Government Chairmen.
The oral evidence in relation to the clearance forms, which also cover Exhibit D – D4 would be found at page 50 of the record, when the 1st Defendant/Respondent said:
“… The clearance form will show that each of these fishermen’s monies was paid into my bank account. These clearance forms, served (sic) as the authority, I have from the fishermen. I do not know the fishermen personally but their cheques were paid into my account, as persons I was authorized by their clearance forms, to act for. In matters of compensation, monies are usually paid to the agents. But in this case, a list was made available to me, and Mobil paid monies directly to the beneficiaries in the list …”
In the Vulcan Gases Ltd. vs. Gessell shaft fur Industries Gasverwertung – A.G (supra) Iguh JSC at page 53 said:
“The effect of ratification of an agent’s act is to put the parties concerned in the same position as that in which they would have been if the act ratified had been previously authorized.”
On the supposed irregularities in the lodgment of cheques into the 1st Respondent’s account, and the deduction of 20% commission, there is first the uncontradicted evidence of the 1st Respondent that he agreed orally with Mr. Rufus Ade – 2nd Respondent and Mrs. Oyama, the representatives of the Appellant, that 20% commission be deducted from even beneficiary and paid into his account maintained for that purpose. That the Appellant honoured the instruction and such commission was deducted and paid into his account, accordingly, for a while. Meanwhile, even DW1, the only witness of the Appellant admitted as much as the following:
1. It would not have been wrong for the Plaintiff (1st Respondent) to instruct the Appellant bank to deduct 20% from his account to pay some other account.
2. The people who benefited from the oil spillage monies were not customers of the 1st Defendant/Appellant.
3. He was not aware that the compensation was made based on verification from Exhibit D.
4. There was no court order that the bank (1st Defendant/Appellant) should freeze the Plaintiff/1st Respondent’s account.
5. It is true that the Bank (1st Defendant/Appellant) invited the Police to investigate the Plaintiff/1st Respondent account. There is no criminal charge or trial against the Plaintiff/1st Respondent.
6. It is true that in the statement of account issued to the Plaintiff 20% deductions are reflected because that is what represents what actually transpired, in respect of that account.
7. The Bank (1st Defendant/Appellant) accepted and used Exhibit ‘D’ to confirm payment, though it was not a document sent to the Bank by Mobil Producing PLC.
8. The N47.7 Million paid by Mobil Producing was paid into the custody of the Bank (1st Defendant/Appellant).
9. Between 12th and 14th May, 1999, the 20% fee due to the Plaintiff from the compensation paid to the beneficiaries amounts to over N150, 000.00
10. “COT” means Commission on Turnover. It goes to the Bank.
11. It is true that in Exhibit ‘O’ at page 30 the Bank charged COT or N23, 580.25 from the Plaintiffs/1st_Respondent’s account. And at page 41 of Exhibit ‘O’ the Bank further learned COT or N33; 856.11 from the Plaintiffs/1st Respondent’s account. That was the Bank’s legitimate earnings from the Plaintiff’s/1st Respondent’s account.
12. it is not the business of the Bank, if some beneficiaries choose to employ the services of an agent to process payments of their compensation.
13. None of the persons whose 20% was deducted in favour of the Plaintiff from the oil spillage compensation fund complained
From the above facts as exhibited, it is certainly inequitable for anyone, such as the Appellant herein to enjoy the liberty of statements or conducts through its accredited agents or representatives which having been acted upon by the 1st Respondent, to the advantage of both parties in the belief that the statements of the Appellants representative are true and/or that their conducts were proper and regular. The law has accorded reasonable protection to unsuspecting members of society who are misled by such statements or conduct because the maker thereof is absolutely estopped to contradict or deny the truth of such statements. See, Section 151 Evidence Act Cap 62 LFN 1990. Bank of the North Ltd. vs. Alhaji Bala Yau (2001) 5 SCNJ 168 at 187.
Expatiating on the nature and far-reaching effect of admissions and the plea of estoppel, Ibekwe JSC, in Yoye vs. Olubode & Ors (1974) 9 NSCC 409 opined at p. 414:
“Estoppel is an admission or something which the law views as equivalent to an admission. By its very nature, it is so important, so conclusive, that the party whom it affects is not allowed to plead against it or adduce evidence to contradict it.”
A similar illuminating view of the nature of estoppel was succinctly expressed in Bassil vs. Honger, 14 WACA 569 at p. 572, per Coussey J. A.
“Estoppel prohibits a party from proving anything which contradicts his previous acts or declarations to the prejudice of a party, who relying upon them has altered his position. It shuts the mouth of a party.”
In the instant case the agents of the Appellants, namely Rufus Ade, the 2nd Respondent and Mrs. Oyama having agreed to follow the 1st Respondents instructions on the 20% deductions and having carried out the said instructions in which the Appellant also deducted its COT – Commission On Turnovers consequent on the 1st Respondent’s instructions, it does not now lie well in the mouth of the Appellant to complain about the regularity of the said transactions by the 1st Respondent. On the question of the agency fees or professional fees of 20% per beneficiary charged by the 1st Respondent, that remains a contractual arrangement between the beneficiaries and the 1st Respondent, and as the Appellant was not privy to the contract, there is no legal basis for the Appellant to complain on that arrangement or contract. It is trite law that a person who is not privy to a contract cannot complain on the contract, the Appellant herein has no justification whatsoever to look or prey into the 20% agency fees or commission between the 1st Respondent and the beneficiaries. In fact, DW1 lent credence to this view when he himself said that none of the persons whose 20% was deducted in favour of the Plaintiff (1st Respondent) from the oil spillage compensation fund of Mobil Producing, has come to ask the Bank (i.e. the 1st Defendant/Appellant) to sue the Plaintiff (1st Respondent) for the return of 20% deducted from their money.
The Appellant has also complained on the rejection in evidence of the Police interim report ID II. Although the learned Counsel for the 1st Respondent as Plaintiff before the lower court did not object to the admissibility of the Police interim reports IDII, in his Ruling on the admissibility of the documents delivered on 14/10/99 at pages 72 – 73 of the record, the learned trial Judge reasoned that “the said documents cannot be admitted as Exhibits because the witness is not the author of any of the two documents and is not even signatory to anyone of them…”
Before this court, the learned Counsel for the Respondent gave yet another reason why ID II could not have been admitted, this is that the Police interim Report is a public document and only a Certified True Copy would have been admissible.
Perhaps, it would have been possible for parties to a civil action to waive the requirement and conditions for the admissibility of such a document as laid down in Section 91 of the Evidence Act, which allows the tendering of a document in any civil proceedings where direct oral evidence of a fact would be admissible. But truly and as pointed out by the learned Counsel to the Respondent, only a Certified True Copy of a public document is admissible under the provision of Section 97 (i) (e) of the Evidence Act. In the instant case, the Police interim report been a public document, only a Certified True Copy of the document would have been admissible.
Now, it is trite that where certain evidence, including documentary evidence, is made inadmissible by the law under any circumstances, it is not within the competence of the court or the parties to the suit to admit it by consent. For as Coker JSC said in Minister of Lands, Western Region v. Nnamdi Azikiwe & Ors (unreported, Supreme Court S.C. 169/68, judgment dated January 31, 1969
“It is not within the competence of parties to a case to admit by consent or otherwise a document which by law is inadmissible.”See also, Omidokun Owoniyi vs. Omotosho (1961) ALL NLR 304, 1962) WNLR, Idowu Alase vs. Sanya Olori llu (1964) 1 ALL NLR 390.
In the instant case, the only admissible copy of the Police interim report ID II been a public document was a Certified True Copy, the 1st Defendant/Appellant having not produced a Certified True Copy, the learned trial Judge was not wrong, in any case to have rejected the said document in evidence.
The last leg of Appellant’s issues Nos. 1, 2 and 3 which he argued together is the contention that the learned trial Judge was wrong to have held the Appellant vicariously liable for the conduct of the 2nd Respondent having regard, from the Appellant’s perspective to the fraudulent collusion and/or irregular conduct of the 1st and 2nd Respondents.
I have said earlier on in this judgment that neither fraud nor fraudulent collusion between the Respondent was proved in this case and also that the Appellant could not complain of even “irregular” conducts carried out to its benefit by its agents or representatives. Given that position, an employer as the Appellant in this case would normally in law be liable for the wrongful act of its employee. In Awache vs. Chime (1990) 5 NWLR (Pt. 150) 302 at 309, the Court of Appeal per Uwaifo JCA (as he then was) held that:
“…. The wrongful act of a servant is deemed to be done in the course of his employment if what happened was merely a wrongful and unauthorized or prohibited mode of performing some duty the servant was employed to do.”
See also, Union Bank Nig. Ltd. vs. Ajagu (1990) 1 NWLR (Pt. 126) 328, Ifeanyi Chukwu Ltd. vs. Soleh Boneh Ltd (2000) FWLR (Pt. 27) 2046. The decision of the Supreme Court in Union Bank of Nigeria Plc vs. E. D. Emole (2001) 12 SCNJ 74 cited by the learned Counsel for the Appellant is distinguishable and not applicable to the facts and circumstances of this case. The Union Bank vs. Emole case (supra) concerns the proof of devaluation of foreign currency affected transactions in a banker/customer relationship and has nothing to do with vicarious liability.
The case of Aeroflot Soviet Airlines v United Bank for Africa (1986) 5 SC 217, also cited by the learned Appellant’s Counsel if anything, supports the application of the principle of vicarious liability because the bank manager in that case was also acting within the scope of his apparent authority when he issued the bank draft.
In the instant case, the learned trial Judge was not wrong when it held the Appellant liable for the refund of the N377, 250.00 outstanding balance of the unauthorized withdrawal from the 1st Respondent’s account. Also, from the foregoing issues Nos. 1, 2 and 3 are resolved against the Appellant.
The fourth issue in this appeal is whether the Appellant/1st Defendant counter claimant was entitled to his counter claim. The Appellant as 1st Defendant claimed against the Plaintiff/1st Respondent and the 2nd Defendant/Respondent by way of counter-claim, special damages thus:
(i) N11, 750, 297.61 being payments the Plaintiff is not entitled to and moneys withdrawn from his account.
(ii) N2Million being payment not reflected in account.
(iii) N4.3 Million pending and unpaid vouchers.
(iv) General damages of N5Million
On the counter-claim of N11, 750, 291.61 in special damages the Appellant relied on the 1st Respondent’s evidence that he wrote cheques for about N11 Million on his account. The Appellant argued that the total amount for the oil spillage compensation was N47.7 Million and that 20% of this amount was not more than N9.7 Million therefore a withdrawal of more the N11 Million from the 1st Respondent’s account meant that the 1st Respondent withdrew monies that were not his.
In support of the second item of special damages, that is the sum of N2Million said not to be reflected in the 1st Respondent’s account, the Appellant relied on the evidence of PW4 that he collected N700, 000.00 from the 1st Respondent’s account for some beneficiaries from Odukpani Local Government Authority and another N1, 210, 000.00 by an order of court for other beneficiaries from Bakassi Local Government Area, which makes a total of N1, 900.00. The third and last item of special damages is the sum of N43 Million for pending and unpaid voucher. This Appellant said was sufficiently proved by the statement of PW1 that “the bank could not pay compensation to all claimant of the oil spillage. Appellants Counsel concluded that items of damages in the counter Claim have been admitted and established by the Plaintiff/Respondent. And once, Plaintiff/Respondent is found not entitled to 3rd parties monies, the counter claim must succeed.
In response to the claim of N11, 750, 291.61 learned Counsel for the Respondent said the claim overlooked the fact that it was not only the 1st Respondent’s agency fees that went into the account. About N6.4 Million belonging to those beneficiaries that were unable to cash their cheques because of a court injunction also passed through the account. Respondent’s Counsel furthered that the Appellant’s Counsel Claim was not even for the difference between the 1st Respondent’s estimated agency fee of N9.7 Million and the N11 Million withdrawn from the account, rather it was for the entire N11 Million. In effect, said Respondent’s Counsel, the Appellant was seeking to recover all the agency fees paid to the 1st Respondent by the beneficiaries of the compensation, as well as the entire compensation paid to some beneficiaries through the 1st Respondent’s account. Respondent’s Counsel said, it is difficult to see the basis of this claim especially when the beneficiaries have not complained about either the 20% agency fee collected by the 1st Respondent or their cheques that were passed through the 1st Respondent’s account. And that even, if the beneficiaries have complained, it is not the place of the Appellant to sue on their behalf to recover their money. Counsel added that the Appellant is not even in a position to trace these beneficiaries again because DW1 said in his evidence that: “the people who benefited from the oil spillage monies were not customers of the bank.”
On the sum of N2 Million said to be payments not reflected in the 1st Respondent’s account, learned Counsel for the Respondent submitted that it was in evidence that the sum of N700, 000.00 paid to PW4 was part of the N6.4 Million lodged in the 1st Respondent’s account by those beneficiaries who were affected by the court injunction. And that as the then Chairman of Odukpani Local Government Council PW4 was one of the Council Chairmen who collected cheques from the affected beneficiaries in his Local Government Area for payment into the 1st Respondent’s account. When the injunction was lifted, PW4 collected N700, 000.00 from the 1st Respondent for payment to beneficiaries from his Local Government Area. Respondent’s Counsel, said PW4’s evidence at page 61 of the record on this point was not refuted or challenged by the Appellant. The second payment of N1, 210, 000.00 according to Counsel was by order of court. And that the circumstances that led to that payment were explained by PW4 at page 64 of the record as follows:
“.. . by order of court, I collected from UBA (the 1st Defendant) the sum of N1, 210, 000.00 for the beneficiaries of Bakassi Local Government Area – which I disbursed to all of them the beneficiaries personally approached me with their cheques and game(sic) me the attorney to act on their behalf … I was approached as a legal practitioner because the Plaintiff’s account had been blocked by the 1st Defendant in July, 1999….. ”
‘When I was paid the N1, 210,000.00 for the beneficiaries, the Plaintiff’s 20% commission was not deducted.’
Respondent’s Counsel submitted that it is clear that the above-mentioned money was not paid at the instance of the 1st Respondent and he did not benefit in anyway from the payment. The payment, he said was made in compliance with a court order Exhibit J, which was even detrimental to the 1st Respondent because he lost his usual 20% agency fee on account of it. It is therefore absurd, said Counsel for the Appellant to ask the court to order the 1st Respondent to refund the money when he had nothing at all to do with it.
On the N4.3 Million claim for pending and unpaid vouchers, Respondent’s Counsel noted the Appellant’s contention that the existence of N4.3 Million pending and unpaid vouchers was sufficiently proved by the statement of PW1 that: “the bank could not pay compensation to all claimants of the oil spillage”. He then submitted that the Appellant quoted the statement out of con. What the witness said according to Respondent’s Counsel was that “they were up to 40,000 claimants but only 3,000 were screened and ascertained for payment.” (Page 48 of the record) Counsel continued, Mobil gave N47.7 Million to the Appellant for payment to the 3,000 successful claimants, and this meant that there were 37,000 unsuccessful claimants who could not be paid. These unsuccessful claimants were those that filed the various law suits that disrupted the payment. These were the people whom the Appellant could not pay and the Appellant falsely and unfairly directed them to go to the 1st Respondent for their money.
Learned Counsel for the Respondent submitted further that even if there are unpaid vouchers for any of the 3, 000 successful claimants; there was no evidence to show firstly that the value of those vouchers was the N4.3 Million claimed by the Appellant. Secondly there was no evidence that the 1st Respondent ever had custody of the money to pay those vouchers.
Respondent’s-Counsel added, that to the contrary DW1 said:
“The N47.7 Million paid by Mobil Producing was in the custody of the bank” (page 78 of the record).
And further stated the procedure for disbursement at page 67 of the record as follows:
“Each individual claimant comes with a payment voucher to the bank. Then we cross check with the voucher given to us by Mobil. If we are satisfied that the claimant’s voucher is genuine we pay the claimant. This done by the cashier … across the counter.”
Finally, on this score, learned Counsel for the Respondent submitted that the 1st Respondent had no role in the above stated procedure. That if there are any vouchers left unpaid, the money to cover those vouchers should be with the Appellant and that it is therefore ridiculous for the Appellant to claim from the 1st Respondent the money to pay any outstanding voucher.
The counter-claim of the Appellant in this case, consists of two categories of monetary sums, the first deals with the 20% commission which accrued to and had been paid to the 1st Respondent. The second are the various moneys belonging to 3rd parties – beneficiaries which were disbursed through the 1st Respondents account. The counter-claim of the Appellant is with respect unfounded, first in the sense that both the 20% agency fees of the 1st Respondent and the various moneys which -passed through the 1st- Respondent’s account have both been adjudged rightly to be lawful payments.
Secondly, the Appellant relied on various statements and evidence of the PW1 and his witnesses in proof of the counter-claim. Unfortunately, these pieces of evidence are not in the nature of admission, which would have relieved the Appellant of the burden of proving that which it asserted. A counter-claim is a fresh and independent claim and the burden of proving such is on the counter claimant. The learned trial Judge found as much when he held at page 142 of the record as follows:
“Throughout the 1st Defendant’s witness testimony, no credible evidence was led by him in prove of the 1st Defendant\s counter-claim. The DW1 never tendered away (sic) any document showing that the Plaintiff withdrew N11, 750,297.61 for which he was not entitled. The DW1 never led evidence to show that the Plaintiff collected N2 Million which is not retracted in his account. The DW1 did not lead evidence nor tender any pending or unpaid vouchers in the sum of N4.3 Million against the Plaintiff. The general damages of N5 Million were not supported by any evidence. The 1st Defendant’s counter claim cannot also succeed in law against the 2nd Defendant. Since the 1st Defendant failed woefully to prove his counter claim as per the special damages. By the same token the counter claim against the 2nd Defendant also fails.”
In the instant case, I agree with the learned trial Judge that the Appellant’s counter claim was bound to fail as there was no evidence tendered in support of the said counter claim.
Issue No. 4 is accordingly resolved against the Appellant. Having resolved the four (4) issues in this appeal against the Appellant, the appeal lacks merit and it is hereby dismissed.
In his brief of argument before this court, learned Counsel for the Appellant has drawn the attention of this court to what he termed a personal attack on him contained in the written brief of the learned Counsel for the Respondent before the lower court at page 99 of the record of appeal to wit:
“It is worth pointing out here that no single beneficiary of the oil spill money has authorized the 1st Defendant to claim the 20% deduction or any sum at all from the Plaintiff. It would appear that the 1st Defendant’s Counsel was unhappy with the quantum of funds accruing to the Plaintiff as professional fees from oil spill compensation exercise. The 1st Defendant’s Counsel had at sometime also shown interest in acting as an Attorney to beneficiaries of the oil spill money in the 5 Local Government Area but failed in his bid. He is now taking the matter personally alleging fraud in order to defeat the Plaintiff’s claim and to enable him mock the Plaintiff.”
Learned Counsel for the Appellant invited this court for comments on the above as the trial Judge below failed to do so. On this point, learned Counsel for the Respondent replied that this court cannot exonerate the Appellant’s Counsel of any allegation without having adequately heard from both sides on such allegation. Since that is not the purpose of this appeal, the Counsel should seek his remedies in more appropriate quarters.
I think the difference between both Counsels in this case creates an opportunity to remind ourselves at large of the ethics of the legal profession, the etiquette, the decorum and the dignity that comes along with membership of the profession. In addition, Counsel must be reminded that the need to protect the profession and the honour attached to it must at all times supercedes the sometimes emotional attachment to our client’s causes as the profession is founded and sustained on mutual respect and brotherhood. God forbid the day when by our utterances and conduct we would have lost the wig and gown even while still wearing them.
Let us learn to respect ourselves as members of the learned and noble profession as we also thrive to be our brother’s keeper.
This appeal is dismissed. There shall be no order as to costs.
Other Citations: (2008)LCN/3009(CA)
