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UNITED BANK OF AFRICA PLC
COURT OF APPEAL (KADUNA DIVISION)
THURSDAY, 28TH JUNE, 2001
2 NWLR (Pt 750)200
BEFORE THEIR LORDSHIPS
ISA AYO SALAMI, J.C.A. (Presided)
RABIU DANLAMI MUHAMMAD, J.C.A.
VICTOR AIMEPOMO OYELEYE OMAGE,J.C.A.(Read the Leading Judgment)
ALHAJI BABANGIDA JARGABA
Ibrahim Buba, Esq. -for the Appellants
Ogbododikue Enock-Lucky, Esq. -for the Respondents
COMMERCIAL LAW – AGENCY:-Act of agent – Bindingness of on principal -Action taken by branch manager of bank – Whether. binding on bank .
COMMERCIAL LAW – AGENCY – OSTENSIBLE AUTHORITY:- Banking practices – Authority of a bank manager to make binding decisions on behalf of parent bank – Bank manager’s ostensible authority to act and bind parent bank – Whether applies whether acts are for the benefit of the principal or not provided he is shown to have acted within the scope of the authority
BANKING AND FINANCE:– Banking practices – Branch manager as agent of parent bank – Status of – Whether considered as directing mind of bank – Nature of agency and authority – Whether ostensible authority – Action of –When deemed binding on bank – Justification – How can be repudiated
BANKING AND FINANCE:– Banking instruments – Cheque – Cheque drawn by customer on his bank – Who retains custody thereof after clearance – Check drawn on another bank for the benefit of his bank – Whether sufficient proof of payment to bank
DEBTOR AND CREDITOR – INDEBTEDNESS:- How proved – Where defendant admits collection of money – Whether burden of proof of indebtedness is deemed satisfied – Section 75 of the Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria, 1990 – Rule that no fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing – Applicability – Whether the onus of proof therefore shifts squarely on the defendants to show that they had no obligation to repay the money which is established has been paid to them
DEBTOR AND CREDITOR – INDEBTEDNESS:- Mere allegation that there has been payment of money even without any admission of collecting same – Whether implies prima facie an obligation on defendant to repay
DEBTOR AND CREDITOR – INDEBTEDNESS:- Debt arising out of banking transaction and instruments – Payments made via drafts – Where draft/check made in favour of bank – Burden of tendering drafts in evidence – Judicial Noticce the court is entitled to take thereto
PRACTICE AND PROCEDURE – ACTION:- Undefended list procedure – Leave to defend – When will be granted – Duty of court to ascertain triable issue in affidavit to defend before granting leave – Relevant considerations
PRACTICE AND PROCEDURE – ACTION:- Undefended list procedure – Nature and object of – Defence contemplated therein – Nature of- Order 22 of High Court (Civil Procedure) Rules of Kaduna State considered.
PRACTICE AND PROCEDURE – APPEAL:- Issues for determination – Competence of issue – How determined.
PRACTICE AND PROCEDURE –EVIDENCE – DOCUMENT:- Documentary evidence – How considered when oral evidence is also available – When documentary evidence will be used to evaluate oral evidence
PRACTICE AND PROCEDURE – EVIDENCE – Proof – Onus of proof in court cases – On whom lies – How discharged – Fact admitted – Whether requires further proof.
PRACTICE AND PROCEDURE – EVIDENCE – UNDEFENDED LIST PROCEDURE:- Nature of evidence required to transfer case from the undefended list to ordinary cause list for adjudication – Duty of defendant in Notice of Intention to Defend to disclose a defence on the merit
PRACTICE AND PROCEDURE – EVIDENCE:– Civil proceedings – Value given to an admission by court– Whether depends on the circumstances in which it was made
PRACTICE AND PROCEDURE – EVIDENCE – PRESUMPTIONS:- Cheque drawn by a customer on his bank is kept or retained by his or its bank after clearance – Whether a banking practice court can take judicial notice of
WORDS AND PHRASES – MAXIM – “Ei incumbit probatio qui dicit, non qui negat, cum per rertan naturamfactum negatis probatio nulla sit (the proof lies upon him who affirms, not upon him who denies)”-Application of
INTERPRETATION OF STATUTES:- Order 22 of High Court (Civil Procedure) Rules of Kaduna State – Section 75 of the Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria, 1990 – Interpretation of
OMAGE, J.C.A. (Delivering the Leading Judgment):
In the high Court number 10, in the Kaduna State High Court Coram Gregory S. Lawan J., a judgment was delivered on 3rd July, 2000. The judgment was delivered in a suit filed under the undefended list procedure, the leave to issue which his lordship had granted earlier. The judgment inter alia is as follows:
“It is true that a defence that I am not liable is a defence, but from the facts of this case and the affidavit evidence and documents, there is no defence on merit. I accordingly enter judgment against the 2nd defendant in favour of the plaintiff.”
The endorsement on the writ of the plaintiff is;—
“For a claim against the defendants jointly and or severally in the sum of N1,960,000.00 being outstanding arising from the failure of the defendants to fully supply to the plaintiff the required numbers of trucks load of fertilisers 2-10 percent interest on the judgment sum and cost of this action.”
The facts of the case as contained in the applicants affidavit in support of the motion for hearing of the claim under the provisions of the undefended suit, Order 23 Civil Procedure Rules Kaduna State is in part as follows:
(7) That sometime in 1999, the plaintiff desire to purchase fertiliser in commercial quantities … he was introduced to the 2nd defendant in Kaduna.
(9) The second defendant informed the plaintiff that a truck load of fertiliser was sold at N600,000.00 that is to sayN1,000.00 per bag, since a truck of fertiliser contains 600 bags.
(11) That with the assurance from the second defendant to the plaintiff that the 1st defendant was having in large quantities to dispose of, the plaintiff purchased bank draft made payable to the 1st defendant.
(12) That in all, the plaintiff made payment in bank draft to the tune of N12,690,000.00 for the truckloads of fertilizer to the 1st defendant on the instructions and directives of the 2nd defendant.
(15) That when the plaintiff went to the 2nd defendant in order to evacuate his truck load of fertilizer, the 2nd defendant directed the plaintiff to the warehouses and/or to the premises of a company called Barmani Holdings Company Nig. Ltd. in Kaduna.
(16) That when the plaintiff got to Barmani Holding Company Ltd. in his bid to evacuate his fertilizer he was told there was a price increase of N50,000 per bag.
(18) That at the time the plaintiff had evacuated the 9th truck load of fertilizer his outstanding balance was N6,960,000.00 hence the plaintiff went back to the 2nd defendant to demand a refund of the said balance.
(19) That on plaintiffs demand of a refund he was paid the sum of N5 million, thereby having a balance of N1,960,000.00.”
The affidavit, concluded that the 1st defendant issued several memorandum undertaking to pay the balance which was not paid.
In a motion dated 1st April, 2000, the 1st and 2nd defendants supported their notice of intention with an affidavit which denies in its paragraph 2(a) the paragraphs 7-24 of the plaintiffs affidavit, and averred that the 1st defendant facilitated the grant of import licence from Drury Industries to import Sola Urea Fertiliser Drury Industries Ltd. The latter failed to repay the debt, to the 1st defendant, who consequently appointed Otunba Olutola Sembose as receiver/manager over the assets of Drury Industries as agent to dispose of the fertiliser pledged to the 1st defendant by Drury Industries Ltd. The plaintiff did approach the 1st defendant to purchase the fertilizer and he was informed by the 2nd defendant that the fertiliser had been sold to Barmani Holdings Ltd. for a total sum of N50,760,000.00 to which body the plaintiff was directed (4c). It was not the 2nd defendant who sold the fertiliser. Thereafter all the averments in the plaintiff affidavit were denied. The affidavit of intention to defend had annexed to it Exhibit FRI.
On the return date, 7/5/2000, after the appearance of both counsel for the plaintiff and the defendant. After hearing both counsel, the court adjourned the matter to 3/7/2000 for judgment.
It is against the judgment, that judgment so delivered and quoted above that the 1st defendant has filed this appeal. For the avoidance of doubt, the defendants in the suit in the court below are (1st) United Bank for Africa PLC., 2nd defendant Alh. Ibrahim El-Rufai. The judgment of the court below in material particular is:
“I accordingly enter judgment against the 2nd defendant in favour of the plaintiff in the sum of N1,960,000.00 against the 1st and 2nd defendant.”
The 1st defendant filed five grounds of appeal from which he formulated one issue for determination, which is written in the brief of argument in the alternative.
Here it is.
“Was the learned trial Judge right in refusing to transfer the case from the undefended list to ordinary cause list for adjudication in the light of the evidence before the lower court or in the alternative. Did the appellants’ notice of intention to defend disclose a defence on the merit to be entitled to have the suit transferred from the undefended list for adjudication on the merit in the light of evidence before the lower court.”
In the respondents brief filed on 28th February 2001, he adopted the same issue formulated by the appellant. He also adopted the alternative issue of the appellant. The issue to be determined therefore in this appeal is this; in the light of the evidence before the court, was the learned trial court right in failing to place on the general cause list, the claims of the plaintiff? For the purpose of clarity, the facts of this case in the court below, simply is that the respondent claim to have bought trucks of fertiliser from the 1st defendant through the 2nd defendant and he could not take delivery of the whole trucks of fertiliser he paid for. Instead of twelve trucks he was able to collect nine and the respondent was given five million naira leaving a balance of N1.960 million. It is because the defendants failed to pay to the respondent the balance of one million, nine hundred and sixty thousand naira that the plaintiff filed this claim for the balance under the undefended list procedure. The 1st and 2nd defendants filed a notice of intention to defend within the prescribed time, and the matter came before the learned trial court on 17/52000. The appellants’ counsel drew the attention of the court to the notice of intention to defend and referred to portions of the affidavit that the plaintiff did not buy from the 1st and 2nd defendant but from Barmani Holdings Ltd., with the UBA drafts. She said in paragraph 4 of the affidavit the second defendant deny liability to the respondent. The appellant’s counsel in the court below referred to the several annexures to the affidavit, and urged the court to transfer the plaintiffs’ claim to the general cause list to enable the defendant defend the claim against them. The printed record shows further that the appellants’ counsel as defence counsel in the court below said:
“I submit that we have a defence prima facie and we are not supposed to show that at this stage.”
The learned trial Judge adjourned the case” on 17/5/2000, for judgment on 3-7 July, 2000.”
On the said 3-7 July, 2000, the trial court delivered judgment as recorded above, which for convenience I reproduce here:
“It is true that a defence that I am not liable is a defence, but from the facts of this case, and the affidavit evidence and documents, there is no defence on the merit.”
Order 22 High Court Civil Procedure rules requires the trial court to transfer the plaintiffs claim to the general cause list if the affidavit of intention to defend shows a defence on the merit. The rule does not expect a determination of the, claim at that stage on the merit. The Issue to be determined therefore is this, does the defence of the respondent shows any merit?
In the instant appeal, the trial Judge is entitled on the spot to determine whether or not the statement showing a defence shows any plausible defence, not just a general denial which does not join a substantial issue with the applicants claim. In U.N.N. v, Orazulike Trading Company (1989) 5 NWLR (Pt. 119) at page 29. Uwaifo JCA., as he then was, he is now JSC, interpreted the rule of defence on merit as follows:
“The law is that where the defendant raises any substantial question of fact which ought to be tried, leave should be given.”
What then is the defence shown by the defendant, it is that the money was received by a third party whereas document annexed show the receipt issued to the claimant by the appellant taking the facts as they are on the printed record, it cannot be said that the defence of the defence shows any merit.
Exhibits ABJ., 1, 2 and 3 are clear evidence of an admission by the appellant of liability to the respondent. See Nwasa v. Imo State (1990) 4 SCNJ 197 at 115, (1990) 2 NWLR (Pt.135) 688. The receipts are evidence of receipt of the money for purchase of the fertiliser by the appellant, and a balance thereof is due, to the respondent.
I therefore affirm the judgment of the court below and dismissed the appeal. There will be costs of N3,000.00 to the respondent.
In the High Court of Justice of Kaduna State, in the Kaduna Judicial Division sitting in the plaintiff’s claim endorsed on his writ of summons against the defendants read as follows:
Being an action brought under the undefended list by virtue of Order 22 of the Kaduna State High Court (Civil Procedure) Rules, Cap. 66 of the Laws of Kaduna State of Nigeria 1991. The writ of summon was supported by affidavit. To the affidavit in support of the action was attached three documents issued by the second defendant. The defendants filed notice of their intention to defend supported by affidavit to which Exhibit FRI is attached.
On the return date, the teamed trial Judge heard argument of both counsel and reserved the matter for judgment. In his reserved and considered judgment, the learned trial Judge rejected the defence and entered judgment in favour of the plaintiff as follows:
“I accordingly enter judgment against the 2nd defendant in favour of the plaintiff in the sum of N1,960,000.00 against the 1st and 2nd defendants.”
The defendants are dissatisfied with the judgment and being aggrieved have appealed to this Court on four grounds of appeal but abandoned ground 1 and were left with 3 grounds from which only: one issue was framed in the alternative. The issue is set out immediately hereunder:
“Was the learned trial Judge right in refusing to transfer the case from the undefended list to ordinary cause list for adjudication in the light of evidence before the lower court or in the alternative, did the appellants’ notice of intention to defend disclose a defence on the merit in the light of evidence before the lower court.”
The learned counsel for the respondent adopted in the respondent’s brief the appellant’s formulation of issue.
Before considering the argument proffered by the parties in their respective briefs of argument, it may be pertinent to state the facts of the case as presented by the two sides to the action.
It is the plaintiff’s (hereinafter referred to as the respondent) case that he was introduced to the defendant (hereinafter referred to as the appellants) when he wanted to buy fertilizer in large quantities. At the premises of the first appellant he met second appellant who informed him that a truck load of fertilizer was being sold for N600,000 or at N1000 per bag since a truck load comprised of 600 bags. When he’ was assured by the second appellant that first appellant had fertilizer in large quantity to dispose of he purchased a bank draft from the Funtua Branch of first appellant for 7 truckloads of fertilizer made payable to Kaduna North branch of the first appellant where the second appellant had an office. Respondent deposed further, in his affidavit in support of the application, that with further assurance from second defendant that the first appellant had more fertilizer in his stock to dispose of, he purchased another bank draft from Afribank Malumfashi branch made payable to the first appellant for a second set of truck loads of fertilizer. It was respondent’s case that the total value of the two bank drafts was N12,960,000.00 paid for the truck loads of fertilizers to the first appellant on instruction and directive of the second appellant. He gave the number of the two drafts as (a) 288452/BO 201-026678 and (b) 020049 BO 35000725H. Neither of them was attached to the affidavit in’ support.
When he was ready to take delivery of the fertilizer, it was averred, that he approached the second appellant who directed the respondent to warehouses or premises of a company called Barmani Holdings Company Nigeria Limited. It was further averred that on getting to the warehouse in his bid to evacuate the fertilizer he was informed of a price increase of N50.00 per bag which was protested to second appellant to no avail and had to be paid for the number of truck loads he had bought.
It was further averred that at the time the respondent took delivery of only 9 truck loads of fertilizer, it appeared the stock of fertilizer had been exhausted and he had outstanding balance of N6,960,000.00. Respondent then returned to second appellant for the refund of his outstanding sum but was paid the sum of N5,000,000.00 only thereby leaving a balance of N1,960,000.00.
It was averred that the respondent visited the second appellant to demand for the payment of his money but all he succeeded in securing from him were written undertakings, Exhibits ABJ1 and ABJ2. It was finally averred that in August 1999 the second appellant wrote the first appellant reminding it of respondent’s outstanding money. The letter is marked Exhibit ABJ3 and attached to the affidavit in support of the writ of summons.
The appellants in the affidavit in support of their notice of intention to defend in paragraph 2(a) thereof denied paragraphs 7 – 24 of the respondent’s affidavit. It was averred that the first appellant helped one Drury Industries Limited to procure import licence to import solar urea fertilizer which Drury Industries Limited was unable to finance. The first appellant which financed the importation appointed one Otunba Sembote receiver/manager to disposed of the fertilizer used to secure the loan granted to Drury Industries Ltd. It was admitted that the respondent approached the second appellant to purchase fertilizer, but he was told that the fertilizer had been sold out but Barmani Holdings Company (Nigeria) Limited which bought the largest consignment had some in stock and he was accordingly directed.
A letter written by the receiver-manager and addressed to the first appellant’s managing director was marked Exhibit FRI and attached to the affidavit in support of notice of intention to defend.
The only issue respectfully calling for determination in this matter, is whether the affidavit accompanying appellants notice of intention to defend disclosed a defence on the merit to justify transferring the suit from undefended to the general cause list under Order 22 rule 3(1) of the Kaduna State High Court (Civil Procedure) Rules Cap 68 of the Laws of Kaduna State of Nigeria 1001.
In the appellants’ brief some argument were canvassed on irrelevant matters which were not in issue in this appeal. The question of conflicting affidavit was never taken up before the trial court neither was the question of the status of deponents to either affidavit raised in the court below. Just as the respondent failed to depose personally to the affidavit in support of his suit so also did second appellant shy away from oath in respect of the affidavit accompanying their notice of intention to defend. The material deposed to in either case were supplied by respective solicitor to some third parties who were neither eye witness nor party to the transaction now under litigation. This was not an issue in the trial court and cannot be raised here for the first time without leave. I do not propose to comment further on what is not an issue before this court and a case of kettle calling, pot black. There can only be a competent issue if there is a ground of appeal challenging the ratio decidendi of the judgment. Learned counsel for appellant contended in the appellant brief that while respondent is saying he did pay the money to the appellant the latter contends that the respondent did not pay the buying price to them but to a third party, namely MIS Barmani Holdings Ltd. In the circumstance, the onus was on the respondent to produce evidence of the payment. Learned counsel then submitted that in the light of the conflicting averments the only way to find out the truth is to find out whether the instruments were paid to Barmani holdings Limited or to the appellant. I agree with the learned counsel for appellant that, in a situation where there is no evidence as to whom the instruments were paid, the only method to ascertain the truth or otherwise of the matter is to sight the instruments and the question of whether the instrument were paid to a third party, Messers Barmani Holdings Ltd., or whether they were truly paid to the appellant would be resolved, because where there is oral and documentary evidence the latter should be used as a hangar from which to evaluate the oral testimony. See Kimdey v Military Governor Gongola State (1988) 2 NWLR (Pt.77) 445 and Fashanu v. Adekoya (1974) 6 SC 83.
But, in the circumstance of this case, there is appellants’ admission, through the second appellant who wrote Exhibits ABJ1, ABJ2 and ABJ3 which made it no longer, at least, necessary for the respondent, to substantiate the averments contained in his affidavit in support of his writ of summons. The exhibits are recited serially immediately hereunder. Exhibit ABJ1 was written on the second appellant’s officially headed note pad and reads as follows:
“Alhaji Babangida Jargaba
Kindly give us one week in relation to the refund fertilizer purchase from UBA Plc through Barmani Holdings regarding the balance of N1,960,000.00.
signed 9/9/99.” (italics mine)
Precisely a week later Exhibit ABJ2 was written to the respondent:
“Alhaji Babangida Jargaba, kindly give us a grace period of 15 days for your balance of N1,960,000.00 being payment routed for Barmani Holdings for purchase of Drury Fertilizer.
signed 16/9/99” (italics mine)
ABJ3 is a memorandum written jointly by the second appellant and one Nasiru M. Abubakar, Head, Funds Transfer. It reads thus:
FROM: KADUNA NORTH BRANCH
Cc: AGM, BOC North, Kaduna
18th August, 1999
We write to notify your good-selves that the following individuals/corporate bodies are yet to receive the balance of their fertilizer stock bought from us nor refund of funds collected by BARMANI HOLDINGS LIMITED through Plc Kaduna North branch.
Kindly expedite action in ensuring that these clients are refunded as some of them are planning legal action against the company and our bank.
We await your urgent response.
IBRAHIM EL-RUFAI NASIRU M. ABUBAKAR
BRANCH MANAGER HEAD, FUNDS TRANSFER
Cc. Alh. Suleiman Garba Nuru – CEO Barmani Holding Ltd.
Cc: Otunba Olutola Senbore -The Receiver/Manager Drury Ind. Ltd.”
The last exhibit is a case of the accused who admitted everything. There is no better evidence than the one that proceeded from the accused’s mouth. The exhibits nailed in appellants. I agree that the value of admission depends on the circumstances in which it was made and evidence in such circumstance is always to affect the weight of admission: Okai II v. Ayikai II 12 WACA 31,32; Ojiegbe v. Oluwaya (1962) 2 SCNLR 358; (1962) 1 All NLR 605,610 and S.17 of the Evidence Act. The second appellant having admitted that the money was collected through the bank there, will no longer be a burden to prove what has been admitted by the appellants. See Onobruchere & Another v. Esegine (1986) 1 NWLR (Pt. 19) 799; (1986) 2 SC 385, 397. Section 75 of the Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria, 1990 provides as follows:
“75. No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”
The learned trial Judge did not exercise his discretion by requiring the facts admitted to be proved otherwise than by the admission. The onus of proof therefore shifts squarely on the appellants’ to show that they had no obligation to pay the money, which is established has been paid to them.
The mere allegation that there has been payment of money even without the admission, implies prima facie an obligation on the appellant to repay. Therefore the onus was on them to show the money was not repayable: Seldon v. Davidson (1968) 1 WLR 1083. To avoid Judgment being given against the appellants they had the burden of showing that they did not participate in the transaction as well as not receiving the money in question. The burden of tendering the drafts whereby the money was paid was on them. Firstly they have to produce the drafts whereby the money was paid for the fertilizer or the refund was made, otherwise, judgment would be given against them even if the matter were to be placed on the general cause list and the respondent failed, refused or neglected to produce the cheques as he would still not be saddled with the burden because they are the ones asserting the positive of payment being made to Barmani. The cheque issued by United Bank for Africa Plc, Funtua by banking practice in Nigeria is in the custody of the appellant who had asserted that the payment was made to Barmani Holdings. I take judicial notice that cheque drawn by a customer on his bank is kept or retained by his or its bank after clearance. The only cheque which would not probably be in the appellant’s custody, through the normal course of banking is the respondent’s second draft drawn on Afribank Plc Malumfashi branch. Even that too must be produced in evidence by the appellant who had alleged that payment was made to Barmani Holdings Company Niger at mited and not to them to establish the assertion.
This is sum up by the Latin saying
“Ei incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum negamis probatio nulla sit,” meaning the proof lies on him who affirms, not upon him who denies, since by the nature of things he who denies a fact cannot produce any proof.
I agree with learned counsel for appellant that the triable issue should not necessarily succeed at the end of the day. All the appellants need do is to show that there is a triable issue or a defence that is not vague or sham. But I disagree with his contention that the learned trial Judge had no business, at the time of deciding whether to transfer the case from the undefended to the general cause list, to consider whether the appellants proved to whom the money was paid and that it was sufficient, once the issue is raised, in the notice of intention to defend, that the payment was not made to the appellant to affect a transfer. This is not the spirit of the provisions of Order 22 especially rule 3(1) thereof which is designed to relieve the courts of the rigour of pleadings and burden of hearing tedious evidence on sham defences mounted by defendants who have no defence and are just determined to dribble and cheat plaintiffs out of reliefs they are normally entitled to. Before a matter is transferred to the general cause list the affidavit accompanying the notice of intention to defend must disclose a defence on the merit and not a mere denial that the money was not paid to the appellants as postulated in the appellant’s brief. There was nothing stopping or preventing the appellant accompanying and attaching to the affidavit disclosing defence with application to join Barmani Holdings Company Ltd. or affidavit deposed to by that other company accepting liability. These materials would probably raise “substantial question of fact which ought to be tried” contemplated in the case: NAB Ltd v. Felly Keme Nig. Ltd. (1995) 4 NWLR (Pt.387) 100, 112 – 3 and not just a mere fanciful denial.
There is a long line of authorities to the effect that for the matter to be transferred from undefended to the general cause list the affidavit in support of notice of intention to defend must show or disclose enough facts to satisfy a reasonable tribunal that the defendant has a defence to the action: It must be such that will require the plaintiff to proffer explanation for certain matters with regard to his claim or seriously question the plaintiff’s claim.
The object of the affidavit is disclosing the ground for asking to be let in to defend the suit are not frivolous, vague or fanciful or designed to delay the trial of the action but must show that there is a dispute between the contending parties to be tried. See Texaco Nigeria Ltd. v. Commercial Amalgamated Printers Ltd. (1972) 1 NMLR 108; Nishizawa Ltd. v. Jethwani (1984)12 SC 234; Jipreze v. Okonkwo (1987) 3 NWLR (Pt.62) 737; Ben Thomas HotelsLid v. Sebi Furniture Ltd. (1989) 5 NWLR (Pt. 123) 523, 529; C.C. Bank Nigeria Plc v. Samed Investment Co. Ltd. (2000) 4 NWLR (Pt.651) 19; ACB Ltd v. Gwagwada (1994) 5 NWLR (Pt.342) 25; (1994) 4 SCNJ (Pt. 11) 268. 277 and Knightbridge Limited v. Atamako (2000) 2 NWLR (Pt.645) 385. 390. It is, however, not for the court, at that stage, to determine whether the defence is good or will succeed or not.
The present case is equally different from the case of Peat Marwick, Ani, Ogunde & Co. v. Okike (1995) 1 NWLR (Pt.369) 71, 86. The distinguishing factor is the admission by the second appellant herein. He is the first appellant’s branch manager in charge of its Kaduna North branch at the time material to the cause of action in this suit. He was first appellant’s directing mind and will of the corporation, the very ego and centre of the personality of the corporation. See Lennards Carrying Co. Ltd v. Asiatic Petroleum Co. Ltd. (1915) AC 705, 712 and Bolton Engineering Co. Ltd v. Graham & Sons (1957) 1 QB 159 172 – 173 per Lord Denning. Although second appellant denied giving undertaking to settle the debt but he failed to deny making or being privy to Exhibits ABJ1, ABJ2 and ABJ3. No reasonable party in the circumstance of this case, would attempt doing so because all the three documents were once faxed on the second appellant’s direct telephone line number 233693 as shown on his official letter headed pad Exhibit ABJ1. To succeed in severing second appellant from ABJ series the appellants have a duty of first showing that the sheet on which Exhibit ABJ1 was written does not belong to the second appellant.
The cases cited in the appellant’s brief are decided on their own peculiar facts and peculiar circumstance: Ojegele & Others v. The State (1988) 1 NWLR (Pt.71) 414; (1988) 2 SCNJ (Part 11) 231,238. They have no application to the background facts of this appeal. Exhibit FRI, for example does not assist the defendants. It merely stated the receiver/ manager’s dealings. It did not exclude the possibility of Mallam Ibrahim El-Rufai having side show of his own. As first appellant’s agent of managerial standing -with ostensible authority to act his acts binds the first appellant whether such acts are for the benefit of the principal or not provided he is shown to have acted within the scope of their authority Lloyd v. Grace Smith & Co. (1912) AC 716 and Trenco Nig. Limited v. African Real Estate Investment Co. Ltd & Another (1978) 1 LRN 146; Wood v. Martins Bank (1958) 1 WLR 1018, 1030. The second appellant is the branch manager of first appellant for Kaduna North and has ostensible authority to collect money on behalf of his employer.
In the circumstance the appeal fails and it is dismissed by me. I affirm the decision of the trial court with costs assessed at N3,000.00
R.D. MUHAMMAD, J.C.A.:
I have read before now the judgment of my learned brother Omage, JCA just delivered. I agree with his reasoning and conclusion. The appeal lacks and is dismissed by me. I also affirm the decision of the trial court. The respondent is entitled to cost which I assess at N3,000.00.