In The Supreme Court of Nigeria

On Friday, the 7^th day of July, 2006

S.C. 229/2000

Before Their Lordships

Between

 And

Judgement of the Court

Delivered by

Sylvester UmaruOnu. JSC.

The Plaintiff/Appellant’s claims in the trial Court as formulated in the Statement of Claim at pages 33, paragraph 19 of the Record are as follows:

“1.       Declaration that the failure or refusal of the defendant to pay the Plaintiff the proceeds of the fixed deposit account covered by receipt No 012825 of 27/1/92 which matured for payment on 27^th January, 1993 amounts to a breach of contract.

2.         Declaration that the defendant is liable to pay the Plaintiff the principal sum plus interest thereon on the said deposit account up till date of payment.

3.         An Order directing the Defendant to pay the Plaintiff forthwith the principal sum plus interest at the agreed rate up till the date of payment.

4.         A further order directing the defendant to pay the Plaintiff by way of damages enhanced interest on the principal sum at the rate of 8% per month less 17% per annum from 1^st February, 1993 until the date of payment.”

The trial Court dismissed the claims after issues were joined and evidence was heard from both sides. The Plaintiff appealed to the Court of Appeal which also dismissed the appeal. Thus, the appeal herein is against the concurrent findings of the two Courts below.

The three issues that have been formulated at the instance of the Plaintiff/Appellant for the determination in this appeal are:

1.         Whether the lower Court was right to make findings contrary to the findings of the trial Court which were not appealed against.

2.         Whether the lower Court gave a proper consideration to the Appellant’s complaint on the issue of estoppel.

3.         Whether it was right for the lower Court to raise and decide an issue not arising from the Appellant’s Ground of Appeal.

The Respondent for its part similarly proffered three issues for this Court’s determination, to wit:

1.         Whether the lower Court was right to make findings contrary to the findings of the trial Court which were not appealed against.

2.         Whether the lower Court gave a proper consideration to the Appellant's complaint on the issue of estoppel.

3.         Whether it was right for the lower Court to raise and decide an issue not arising from the Appellant’s Ground of Appeal.

I will consider Appellant’s issue Nos. 1  and 2 together which in turn cover Grounds 1, 2, 3 and 4 of the Grounds of Appeal thus: at page 133 lines .. - page 134 lines 1 - 4, the learned trial Judge held as follows:

“There is however nothing on the face of the documents to show that the Plaintiff authorised the transfer. The oral instruction which the Defendant claimed was given by the Plaintiff was vehemently denied byhim. Moreover, the Plaintiff was still in possession of Exhibit A, the fixed deposit receipt. At the time the Defendant gave the oral instruction, it did not demand for the surrender of Exhibit A before the instruction was carried out.Considering the position as at 7/2/92 when the said sum of N2,000,000.00 was transferred from Plaintiff’s personal Account to the Account of Alsod Nigeria Limited there is nothing to show that the Plaintiff authorized the transfer.”

There was evidence on record that as a valued customer of the Respondent, he was given preferential treatment because the Appellant did not give any written instruction to transfer the sum of N2,000,000.00 from the Account in the name of the Appellant. In effect, as at 7/2/92, there was no document to back up the transaction.

The learned trial Judge did not stop at 7/2/92. He went on by observing:

“I will however go further to consider the events thatfollowed.”

After enumerating the events/transactions that took place after the money had been transferred to Alsod Account in order to discover whether indeed the Appellant was aware of the transfer, the events took the following order of sequence:

(i)         The Defendant deducted the sum of N401,438.57 from money transferred to Alsod Nigeria Limited and transferred same to its Agodi Branch to meet the indebtedness in the three Accounts at the Branch.

(ii)        Alsod Nigeria Limited was in debit of N2,308.58 as at 6/2/92, but when the transfer of N2,000, 000.00 was made on 7/2/92, it was in credit of N1,979,691.42as per Exhibit F which was sent to the Plaintiff/Appellant and which he tendered.

(iii)       When the sum of N401,438.57 was deducted, the Company had a credit balance of N1,578,252.85.

(iv)       Thereafter, a cheque of N1,580,000(One million, five Hundred and Eighty Thousand Naira) was issued and made payable to the Account of Alsod Nigeria Limited at Afribank PLC U. I. Branch, Ibadan. The same was signed by the Plaintiff/Appellant as the Company’s Managing Director and sole signatory to the Account of the Company. The cheque was tendered as Exhibit J.

The learned Judge after reviewing the transaction on Alsod held as follows:

“There is no evidence that the Company Alsod Nigeria Limited queried Exhibit F. The question then is whether the acknowledged act of the Company can be imputed to the Plaintiff. It is trite law that the Plaintiff and the Company are separate and distinct persons even though the Plaintiff is the Chairman/Managing Director of the Company and the sole signatory to its Account. The Company is a legal person and is legally different from the Plaintiff. But a Company being a legal person can only act through its human agents and officers. The state of mind and will of directors and managers who represent the directing mind and will of a Company and can control what it does is the state of mind of the Company and is treated by the law as such ………………..............

Ihold that the Plaintiff was aware or ought to have been aware that on 7/2/92, the sum of N2,000,000.00(Two Million Naira)standing in his fixed deposit Account was transferred to the Account of Alsod Nigeria Limited.”

Again, the learned trial Judge held as follows:

“I hold that the Plaintiff was aware that the sum of N2,000,000.00(Two Million Naira) in his fixed deposit Account was transferred to the Account of Alsod Nigeria Limited on 7/2/92; this is reflected in Exhibit F. That part of the money was used to settle the debts in Account Nos. 557, 1967 and 842 at the Agodi Branch of the Defendant two of which Accounts, that is Nos. 1967 and 842 are in the Plaintiff’s personal name and the third one in the name of the Plaintiff’s Company and afterwards, the Plaintiff caused to be withdrawn, virtually the balance remaining after payment of the aforesaid debts. I also hold that since 10/2/92 when Exhibit F was issued showing the transfer of the N2,000,000.00(Two Million Naira), the Plaintiff did not raise any query until 31/12/92 when he wrote Exhibit B. I am of the considered view in the circumstances that the Plaintiff can no longer claim the amount originally placed on fixed deposit.”

From the foregoing I am of the view that subsequent transactions on Alsod Nigeria Limited Account as hereinbefore demonstrated shows unequivocally that the Appellant was aware when the money was de-fixed. The findings of the lower Court as contained on page 183 lines 27-37 and page 184 lines 1 - 6 are neither erroneous nor contrary to the findings of the learned trial Judge. Indeed, rather than departing therefrom, it re-affirms and I agree with the findings of the learned trial Judge.

At   paragraph   22   of the   Amended   Statement   of Defence, the Respondent pleaded thus:

“The Defendant will rely on all equitable defences including estoppel.”

The Respondent gave evidence and tendered documents in supportthereof with the evidence remaining unchallenged and uncontroverted.

The Court below held as follows:

“I agree entirely with this view of the learned trialJudge that paragraph 16 and other paragraphs (underlining is for emphasis) i.e the Statement of Defence sufficiently pleaded facts which constitute the plea of estoppel. The finding by the learned trial Judge that the Plaintiff was aware of the de-fixing of the N2,000,000.00(Two Million Naira) fixed deposit and transfer of the same to the Account of Alsod Nigeria Limited is tantamount to a finding that he authorised the transfer. And having regard to the fact that he even drew from the Account through Exhibit J shortly thereafter, the principle of estoppel should be involved to prevent him from claiming the same N2,000,000.00 which he has utilized. See

(i)         S.A. Adebanjo v. Brown (1990) 3 NWLR (Part 141) p.667, see also Bullen and Leake’s Precedents of Pleadings, 6^th Edition, p.646

(ii)        ArcaboldEgba&Ors v. Chief Warri Ogudo&Ors. (2000) 6 S.C Part 1. page 133 at 147 where the Supreme Court held:

“An   estoppel,   therefore,   is   an   admission;   or something which the law treats as equivalent to anadmission, of an extremely high and conclusivenature - so high and so conclusive, that, the party whom it affects is not permitted to aver against itor offer evidence to controvert it.”

(iii)       In Joe Iga&Ors. v. Ezekiel Amakiri&Ors. (1976) 11 S.C at 12 -13, this Court held:

“If a man   by his words or conduct wilfullyendeavours to cause another to believe in a certain state of things which the first knows to be falseand if the second believes in such state of things and acts upon the belief, he who knowingly made the false statement is estopped from averring afterwards that such a state of things does not exist at the time, again. If a man either in express terms or  by  conduct, makes  representation to another of the existence of a state of facts which he intends to be acted upon in a certain way, in the belief of the existence of such a state of facts, to the damage of him who so believed and acts, the first is estopped from denying the existence of such a state of facts. Thirdly, if a man whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts and that it was a true representation, and the latter was intended to act upon it in a particular way, and he with such belief, does act in that way to his damage, the first is estopped from denying the facts as represented.”

Issue No 3 overlaps Ground 5 of the Grounds of Appeal, which as a subsidiary issue, the Court below asks whether the payment of the sum of N267, 645.21 was in full and final settlement as the debits owed in the three Accounts at the Agodi Branch.”

Whereas the case of the Appellant is that the sum of N267,645.21 was full and final payment, the Respondent’s case is that the amount outstanding on the Accounts was N401,438.57. I agree with the Respondent that the dealings on Alsod Nigeria Limited account after the N2,000,000had been transferred to the said Account cannot be complete until the subsidiary issue of whether N267,645.21 was in full or part payment, has finally been decided upon. In this wise, I also entirely agree with the Respondent that the subsidiary issue raised is not outside the Ground of Appeal.

It is for these reasons that I entirely agree with the Respondents that all the cases cited by the Appellant are irrelevant and are of no avail; that the lower Court did not make any findings not made by the trial Court; that the equitable defence of estoppel was properly pleaded in many paragraphs of the amended Statement of Defence and properly applied by the Court below; and that finally, the subsidiary issue formulated by the Court below is covered by Ground 4 which is not outside the Grounds of Appeal.

For the above reasons I dismiss this appeal and award N10,000.00 costs to the Respondent.

Hon. Justice I.C. Pats-Acholonu who is now deceased took part in the conference of this case and indicated his concurrence at the conclusion with the rest of the panel.

Judgement delivered by

UmaruAtuKalgo, JSC.

I have had the opportunity of reading in advance the judgment just delivered by my learned brother Onu. JSC. I agree with him that for the reasons contained in the said judgment, which I also adopt as mine that the appeal is devoid of any merit. I therefore also dismiss the appeal and abide by the orders made in the said judgment.

Judgement delivered by

DahiruMusdapher

I have had the privilege to read in advance the judgment of my Lord Onu, JSC just delivered with which I entirely agree. For the reasons given in the lead judgment which I respectively adopt as mine, I too, find this appeal as lacking in merit and I accordingly dismiss it. I abide by the order for costs contained in the judgment.

Judgement delivered by

George Adesola Oguntade JSC.

I have had a preview of the judgment just delivered by my learned brother Onu, JSC. I agree with his reasoning and conclusion and I subscribe to the order of costs.

Counsel