Alhaji Abba Satomi Saleh Vs Bank Of The North Ltd (2006)
LAWGLOBAL HUB Lead Judgment Report
MUSDAPHER, J.S.C.
In the High Court of Justice of Borno State of Nigeria, in the Maiduguri Judicial Division and in suit No. M/166/88, the respondent herein, Bank of the North Ltd. as the plaintiff claimed against the appellant herein as the defendant as follows:-
” …. the sum of N2,041 ,078.73 (Two million, forty-one thousand and seventy-eight Naira, seventy-three kobo) against the defendant, being the balance due on overdraft and L.B.A. facilities granted to the said defendant as a customer of the plaintiff at his request from the period of November, 1973 to about 1987 inclusive of accrued interest and other bank charges thereon as at 30/9/1988 which amount the defendant ought to have repaid long ago but has refused or neglected to pay in spite of several demands by the plaintiff. The defendant’s indebtedness to plaintiff was admitted in writing on several occasions.
The plaintiff claims additionally, interest on the said amount of N2, 041 ,078,73 at the rate of 17% per annum from the 1st October, 1988 till the day of final payment of the judgment debt to be obtained herein plus costs of this suit.”
The appellant, Alhaji Abba Satomi Saleh, as the plaintiff in suit No. M/32/89 claimed against the respondent, herein as the defendant, in paragraph 13 of the statement of claim as follows:-
“13(a) A declaration that the removal of the total of N1,506,610.00 by the agents and/or servant of the defendant from the 3 accounts Nos.400085, License Buying Agent No.410093B and 410096B of the plaintiff through payment on cheques not issued or authorized by the plaintiff is wrong, null and void.
(b) A declaration that the defendant by the acts of its servant or agents has breached the sacred relationship between a Bank and its customer.
(c) An order that the defendant should repay to the plaintiff the total sum of N1,506,610.00 wrongly and negligently debited from accounts Nos. 400085, License Buying Agents Account No.410096B and 410093B.
(d) N100,000.00 General Damages.”
Pleadings were duly settled, 1iled and exchanged in each of the two suits which were eventually consolidated and tried together by the trial Judge. At the hearing, the respondent herein called three witnesses and tendered a number of documents, while the appellant testified and called a witness. After the address of counsel, in its judgment delivered on the 25/5/1995, the trial court dismissed the claims of the plaintiff in suit No. M/166/88 while the claims in suit No. M/32/89 were allowed. Bank of the North Ltd., the respondent herein, felt unhappy and appealed to the Court of Appeal, Jos Division. The Court of Appeal after hearing the appeal, in its judgment delivered on the 15/6/1999, reversed the decisions of the
trial court by granting the reliefs sought by Bank of the North Ltd.
in suit No. M/166/88 and by dismissing the claims of the appellant herein, in suit No. M/32/89. This, now is an appeal by Alhaji Abba Satomi Saleh as substituted, with leave of this court, with his son Muazu Abba Satomi Saleh. Now, the parties shall be referred to hereinafter as the appellant and the respondent as the case may be. But before I discuss the issue for determination in this appeal, it shall be necessary to set out the background facts.
Based on the pleadings and the evidence led at the trial, the facts of the case may be summarised as follows. The respondent is a banker and the appellant was its customer. The appellant was a businessman and a licensed buying agent based in Maiduguri and was carrying on business under the name and style of “Alhaji Abba Satomi Saleh and Sons.” The case of the respondent was that the appellant opened a current account on the 18/3/1971 with the respondent bank. As from November, 1973, at his request, the appellant was granted overdraft facilities on his own personal account and on the Licensed Buying Agent Account (hereinafter referred to as LBA account) in the sums of N3000 and N12,000.00 respectively.
By 1981, at the request of the appellant, the facilities were increased to a total of N400,000.00. As at 30/9/1988, the debit balance of the appellant’s accounts stood at N2,041,078.73 inclusive of accrued interest and bank charges. The respondent bank used to send regular statement of accounts and letters reminding him of his indebtedness.
The appellant on several occasions both in writing and orally admitted his indebtedness to the respondent bank. To the chagrin of the respondent, on the 3/3/1988, 24/5/1988 and 11/7/1988, the appellant denied his indebtedness to the respondent and alleged that the bank had mismanaged and mishandled his accounts. The respondent denied the claims of the appellant that his accounts were mismanaged or mishandled.
On his own part, the appellant denied the respondent’s claim and asserted that it was the respondent bank that was indebted to him in the sum of N1,506,510.00 being the total amount of 8 cheques debited against his account without his authority. The appellant claimed that he discovered that the officials of the respondent bank had mishandled and mismanaged his accounts. He claimed one Mr. Chawai branch accountant and one Mr. Taiwo assistant manager had between 1982 and 1983 manipulated his accounts as a result of which they were retired by the bank.
As mentioned above, the trial Judge dismissed the claims of the bank and entered judgment in favour of the appellant. The Court of Appeal reversed the decision of the trial court by allowing the claims of the bank and by dismissing the claims of the appellant.
The appellant has filed five grounds of appeal from which only one issue has been identified, formulated and submitted to this court for the determination of the appeal. The issue reads:-
“Was the court below right having regard to the pleadings, the evidence on the printed record and the’ circumstances of this case to have reversed the findings and judgment of the trial court”
The respondent has more or less formulated the same issue for determination of the appeal.
All the arguments of the appellant centered and complained on the Court of Appeal setting aside and overruling the findings of facts made by the learned trial Judge. It is argued that the learned trial Judge had properly reviewed and appraised the entire evidence before he came to the conclusion that the respondents had not “shown on the preponderance of probability that the defendant is owing the bank the amount claimed. The suit is hereby dismissed.” The Court of Appeal on the other hand, came to the conclusion, that the appellant having pleaded that he repaid the overdraft of N400,000.00 and would rely in proof thereof on “all the other relevant bank document showing that he had paid back to the plaintiff the sum of N400,000.00” The proof by his mere “ipse dixit” that he had repaid was not enough. He had failed to establish the repayment by adducing evidence through the “relevant documents i.e. tellers, cheques etc.”
It was also the finding of the lower court that the repayments were not specifically pleaded nor were they indeed proved and accordingly, the Court of Appeal found that the appellant had, having admitted the debt failed to establish that he had paid the debt.
In its judgment, the Court of Appeal held:-
“Despite the plethora of documentary evidence which the appellant (the bank) tendered in proof of its case, the learned trial Judge dismissed its case. In so doing he gave three main reasons firstly, that one of the three witnesses, P.W.1, P.W.2 and P.W.3 was not there when the respondent opened the account with the bank, secondly, that he believed the respondent paid the amount he claimed he paid; and thirdly, that the respondent’s manipulation of his account as confirmed by D.W.1 was true.”
I entirely agree with the opinion of the court below, that the mere fact that – a bank staff was not around when a customer’s bank account was opened was not enough to prevent the staff from testifying or giving evidence on customer’s account. See Kate Enterprises Ltd. v. Daewoo (Nig.) Ltd. (1985) 2 NWLR (Pt.5) 116. See also Ishola v. SGB (Nig.) Ltd. (1997) 2 NWLR (Pt.488) 405. See also Anyaebosi v. R.T: Briscoe (Nig.) Ltd. (1987) 3 NWLR (Pt.59) 84, Igbodim v. Obianke (1976) 9-10 S.C. 179. It is settled law, that a company such as the respondent bank herein is a juristic person and can only act through its agents or servants. Any agent or servant can consequently give evidence to establish any transaction entered into by a juristic personality. Even where the official giving the evidence is not the one who actually took part in the transaction on behalf of the company. Such evidence nonetheless relevant is admissible, will not be discountenanced or rejected as hearsay evidence. The learned trial Judge was clearly in error to have ignored the evidence led by the respondent’s witnesses on the ground merely that they were not around when the appellant opened its account with the respondent bank.
In a situation such as this, where the appellant claimed to have repaid the loan overdraft against the statements of accounts tendered by the respondent bank showing non payment by the appellant, the proof of payment by the mere “ipse dixit” of the appellant cannot be sufficient proof of repayment of the debt. See Debs v. Cenico (Nig.) Ltd. (1986) 6 S.C. 176, (1986) 3 NWLR (Pt. 32) 846.
The best way of proving payment of money into a bank account is by the production of bank teller or an acknowledgement showing on the face of it that the bank has received the payment. A bank teller duly stamped with the official stamp of the bank and properly initialled by the cashier, constitute prima facie proof of payment of the sum therein indicated and a customer, after producing such a teller or receipt needs not prove more unless payment is being challenged, see Ishola v. S.G.B. (Nig.) supra and Aeroflot v. U.S.A. (1986) 3 NWLR (Pt.27) 188.
On the issue of the manipulation of the appellant’s account by the staff of the respondent, in my view, the learned trial Judge failed to consider the evidence led by the respondent, that the complaint of the appellant was fully investigated and was found to be baseless and the appellant was duly informed in “exhibit L”. The statement of account referred to above exhibits E1 – E35 were tendered by the plaintiff/respondent in proof of the debt owed, the statements of account were not falsified by the appellant and no entry was shown or proved to be wrong. The appellant did not pinpoint any error even when all the cheques issued by him exhibits J1-J820 were made available to him. In particular, he did not identify the 8 cheques he disagreed with. I am of the firm view that the allegation of mishandling of the account appear to me to be a mere ploy or subterfuge to avoid repayment of the overdraft.
Further to above, in exhibits H1 and H2, the appellant wrote to the respondent admitting his indebtedness. I reproduce hereunder exhibit “H1” dated 29/11/1982:-
“The Area Manager,
Bank of the North Ltd.
Maiduguri Branch
Dear Sir,
With reference to my letter dated 11/11/1982, I agree to liquidate my debts from the following sources:-
Sources Amount
(a) Construction contract N656,250.00
(b) Produce business 212,000.00
(c) School food supply 168.000.00
N 1.036.250.00
The appellant went further to ask for additional loan or overdraft to “finance Basalah Industries Ltd., a company wholly owned by me to the production level.”
In my view, the trial court completely abdicated its responsibility of properly evaluating and of appraising the entire evidence led before it. It has also misdirected itself on the onus inferences from the evidence adduced. But the law is settled that an appellate court shall not ordinarily interfere with the verdict of a trial court. In the case of Ogbu v. Ani (1994) 7 NWLR (Pt.355) 128 at 140 Belgore, JSC stated thus:-
“This court has on several occasions warned against interfering with conclusions of trial court on facts. Trial court has many advantages a Court of Appeal never has.
It sees the witnesses, hears them and assesses their demeanour and makes findings in line with what in law is admissible. It is the trial court that can assess the veracity of a witness before it. Onuoha v. The State (1989) 2 NWLR (Pt.101) 23. It is not the function of the appellate court to interfere with the findings of trial court on facts. There are however, exemptions to this rule. If findings are not supported by evidence that finding shall be set aside by the appellate court; also when the finding is supported by evidence but that evidence is by law not admissible or the finding is perverse it will be set aside by the appellate court. See
Chukwueke v. Nwankwo (1985) 2 NWLR (Pt.6) 195; Eghase v. Oriareghan (1985) 2 NWLR (Pt.10) 884;
Ajuwa v. Odili (1985) 2 NWLR (Pt.9) 710; Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484; Agbonife v. Aiwereoha (1988) 1 NWLR (Pt.70) 325.”
Since the trial court had abdicated its duty in relation to the proper appraisal of the evidence, the Court of Appeal was in a good position to do so to ensure that justice is done to both parties. As shown at the beginning of this judgment, the case of the respondent bank was simple and straightforward. There was no dispute that the appellant at his request applied for and was granted loan facilities. There was no dispute that the appellant enjoyed the facilities. The appellant wrote letters, such as exhibit III admitting his indebtedness to the respondent. In his pleadings, he claimed to have repaid the loans. It was incumbent on him under the circumstances to prove the payment. He cannot by his mere ipse dixit sufficiently prove
repayment as against the tendered cheques and the statements of account which he could not falsify. He did not prove the repayment as he averred to in his pleadings by relying on “all the other relevant bank documents”.
The appellant also claimed that there was manipulation of his accounts by the staff of the respondent. He simply failed to establish the allegation and as mentioned above, the respondent caused evidence to be given that the allegation was investigated and was found to be false. The statements of account and the cheques issued by the appellant were all placed before the court and the appellant did not “rely” on them to establish his claims, nor did the appellant identify the eight cheques he claimed were not issued by him. I agree with the decision of the Court of Appeal, that the appellant did not lead credible evidence to entitle him to judgment while the respondent “had led sufficient credible evidence to be entitled to judgment to his claims.”
Under the circumstances, the Court of Appeal is clearly justified in re-evaluating the evidence and in drawing correct inferences from the primary facts established. In the case of Ezekwesili v. Agbapuomvu (2003) 9 NWLR (Pt.825) 337, it was held that an appellate court has always the competence to interfere or disturb the evaluation of evidence and findings of fact which are not based on proper and dispassionate appraisal of the evidence given in support for each parties case or where such findings are perverse in the nature of the evidence and the pleadings or where on the face of the record, justice has not been done in the case.
Consequently, the Court of Appeal was in a position to have properly evaluated the evidence adduced by the parties in the course of its judgment and to hold that the respondent proved its case on the balance of probabilities and the appellant had failed to establish his claims. See Mogaji v. Odofin (1978) 4 S.C. 91; Woluchem v. Gudi (1981) 5 SC. 291; Ebba v. Ogodo (1984) 1 SCNLR 372.
I must in the end resolve this single issue against the appellant.
I accordingly dismiss the appeal and affirm the judgment of the Court of Appeal. The respondent is entitled to costs assessed at N 10,000.00 against the appellant.
SC.236/2001
