Universal Trust Bank of Nigeria Limited V. Awanzigana Enterprises Limited (1994)
LawGlobal-Hub Lead Judgment Report
SAMSON ODEMWINGIE UWAIFO, J.C.A.
On 13th March, 1990, at the High Court, Lagos, A. O. Silva, J., gave judgment in a claim based on unauthorised withdrawal of a sum of money from the plaintiff’s account with the defendant. The plaintiff is a company engaged as a general merchant in commodities marketing and transportation. The defendant is a banker.
On 9 July, 1986, the sum of N 100, 000.00 was withdrawn from the plaintiff’s account No. 00197 – 01442 in the defendant’s Apapa Branch, Lagos by means of a counter cheque. The plaintiff says it authorise or made no such withdrawal.The defendant says it was the Managing Director of the plaintiff company, Alhaji Abba Mustafa, who came in person to withdraw the money.
The plaintiff in the amended statement of claim asked for (a) general damages of N250,000.00 “for the negligence of the defendant in the payment” of the said N 100,000.00; and (b) payment of the said sum of N100,000.00 with “interest at 18% or the current rate with effect from 9/7/86 until payment is made.”
A careful study of the oral evidence and the documentary evidence is bound to reveal how intriguing the case is. Any unfortunate gloss over the intricate aspects of the evidence leads inexorably to a miscarriage of justice. This is particularly so when the allegations of negligence and forgery accompanied by fraud, with which I shall deal in some detail later, are a direct indictment of the defendant bank’s officials. There is nothing unusual; I need to say, in making such allegations when appropriate. But in the present case, it is the unsettling implications of those allegations that cannot, from the available evidence and perhaps from the way the proceedings were conducted, escape attention.
The learned trial judge reviewed the evidence adduced before him and held that there was forgery of the counter cheque. In ruling out payment of the money in good faith in view of the reliance placed by the defendant on sections 60 and 90 of the Bills of Exchange Act (Cap. 21) Laws of the Federation, the learned trial judge said: “From the evidence, it is my view that the cheque was dishonestly paid.” He then gave judgment for the plaintiff against the defendant for N 100,000.00 without interest. He added: “I do not think interest should be awarded since this could not have been in the contemplation of the parties at the time of the fraudulent withdrawal of the money from the plaintiff’s account which was a current account.”
The defendant/appellant has in its appeal raised seven issues for determination. They are stated as follows:
“1. Whether or not the rejection of an application to call an expert witness (handwriting analyst) by the Defendant after the plaintiff was granted leave to adduce further evidence by calling an handwriting analyst affected the decision.
2. Whether the failure of a Defendant to refer disputed documents in its possession for handwriting analysis before the trial would preclude a court from granting such Defendant leave to refer such disputed documents to an analyst as aforesaid.
If the answer is negative: whether the failure of the learned trial judge to grant leave to the defence to refer disputed documents for handwriting analysis and call such analyst as witness would have affected the outcome of the trial.
3. Whether the testimony of a handwriting analyst with regard to disputed signatures on a document is sufficient to prove an allegation of fraud beyond reasonable doubt.
4. Whether in the circumstances of this case the applicant was negligent in paying out some money on an allegedly forged cheque.
5. Did the learned trial judge follow the principle laid down in Mogaji v. Odofin (1974) 4 SC 94, while evaluating the evidence before him? OR Did the learned Trial Judge follow the appropriate principle while evaluating the evidence before him?
6. Whether the learned trial judge properly directed himself about the burden of proof and discharge of same, having particular regard to the nature of the issues placed before him, in particular evidence of forgery, fraud and dishonesty especially the import of Section 90 of the Bills of Exchange Act (Cap. 21).
7. Was the judge right in entering judgment for the plaintiff/respondent on the state of the evidence before him?”
The plaintiff/respondent has reduced these to three, namely:
“(a) Whether the respondent company signed and/or authorised the application Ex. 8, for the purchase of Counter-cheque Ex. 9, and whether it authorised the withdrawal of the sum of N 100,000.00 from the plaintiff/respondent account with the appellant on 9th July, 1986.
(b) Whether the appellant was negligent and or dishonest in the circumstances.
(c) Whether the respondent was entitled to judgment.”
I think both parties talk of the same issues to some extent except the issues on the handwriting analysis complained of by the defendant/appellant. In my view these ought to be given a separate and prominent consideration.
It is common ground that the plaintiff company had, at all material times to this action, a current account with the defendant bank at its branch at Apapa Lagos. The Managing Director of the plaintiff company, Alhaji Abba Mustafa, who testified as P.W.1, was the sole signatory. He is not literate, not being able to read or write. But he can write and identify his signature. An amount of N100, 000.00 was on 9 July, 1986 withdrawn from the said account by a counter cheque, Exhibit 9. A counter cheque is a single cheque leaf requisitioned for and given to an owner of an account to enable him to withdraw from his account if he has not, or claims not to have, got his cheque book on him. At various times some members of staff of the defendant bank had assisted Alhaji Mustafa to write out his cheques for him to sign. There was that official cum personal relationship in that regard. A total of thirteen cheques signed by Alhaji Mustafa were admitted: see Exhibits 3, 3A-3J, 4, 4A-4B. Of these, only exhibit 3B was written by the General Manager of the plaintiff company, Alhaji Adamu Abubakar, who testified as P.W. 2.
The counter cheque (exhibit 9) which was used for withdrawing the N100,000.00 was said to have been made available to Alhaji Mustafa through a Requisition Form the day the cheque was used. It was admitted as exhibit 8. Alhaji Mustafa denied neither ever requisitioning for a counter cheque nor signing any such cheque on 9 July, 1986. He however admitted being present at the bank that day on which occasion he paid in a bank draft for N70, 000.00 as per remittance form admitted as exhibit 1. Although there is no evidence as to when and how the bank draft got to Alhaji Mustafa, it is significant to note that it is a Kano draft (as stated in exhibit 1).
The case of the defendant bank, supported by four of its officials, reads in brief: Alhaji Mustafa called on the branch Operations Officer of the Bank. Stephen Ayorinde Odewusi (D.W.1) on 9 July, 1986. He told him he was from the Airport and did not have his company’s cheque book on him. He had an urgent business to transact so he requested for a counter cheque. Mr. Odewusi telephoned Gregory Charity Edema Ogbe, an Assistant Operations Officer (D.W. 2), and informed him of Mustafa’s request. Mr. Ogbe in turn instructed Miss Olusolape Dinakin, a clerk (d.w. 4), to get a cheque requisition slip (or form) for Mustafa. Dinakin brought one to Mustafa where he was sitting in front of Odewusi. At the request of Mustafa, Dinakin helped to fill in the requisition slip in the presence of Odewusi and Mustafa. Then Mustafa signed the slip, front and back: exhibit 8. Dinakin took the signed cheque requisition slip (exhibit 8) to Ogbe (D.W.2) the custodian of all cheques including counter cheques in the branch for approval. Ogbe approved by initialling exhibit 8 and gave the counter cheque book to Dinakin who took it straight to Odewusi.
In the presence of Dinakin, Mustafa instructed Odewusi to write out the cheque. To use Dinakin’s expression as to how Mustafa gave the instruction, he said, “write am”. Odewusi wrote out the cheque in the presence of Dinakin for N100, 000.00. Dinakin took away the cheque book after Odewusi detached the counter cheque. Mustafa signed the counter cheque (exhibit 9), front and back. His company’s stamp was not affixed then because he did not have it on him. But true to his promise to bring the stamp to be affixed on exhibit 9 before the close of business that day, he complied. The stamp was affixed, front and back.
After exhibit 9 had been signed, Odewusi called Raphael Omosuyi, a Supervisor (D.W. 3), and gave him the cheque for N100, 000.00 drawn on the plaintiff company to encash it and give the proceeds to Mustafa, Omosuyi requested Ogbe for the money. Ogbe and Omosuyi brought the money out of the strong room. Omosuyi kept the money in the vault room and asked Mustafa to come in there to collect it. He did so in the presence of Ogbe and one Adebayo, the vault teller. It is the practice that any amount over N30, 000.00 is not paid over the counter. The money was taken away in two Central Bank boxes later returned by Mustafa through his driver.
It was some months later on 24 September, 1986. Mustafa came for reconciliation in view of some money he had paid in on 5 September, 1986 not reflected in his company’s account. The amount was N 138,000.00. The then Internal Control Officer, Johnson Adepoju (d.w. 5) said in connection with that amount:
“I made an enquiry as to why it was not reflected in the plaintiffs account and I found out that the account number on the teller was the number of another customer by the name Alhaji Bako into whose account the sum of N 138,000 was paid. I informed the Manager about the mistake which I discovered. Alhaji Bako was informed and the entry was reversed.”
It was on that occasion too Mustafa raised an issue about the N100,000.00. This was apparently because it was not reflected in any of his company’s cheque stubs. It would not be reflected in any of them if, as was contended, the money was drawn with a counter cheque. In this regard, Adepoju (d.w. 5) said as to what then happened to resolve the matter:
“I quickly requested for his (Mustafa’s) cheque stubs and his tellers in order to reconcile his accounts. After checking through I found that the cheque for N 100,000 was not in his cheque stub. I then went to our archives to check what must have been responsible for the N 100,000 debit. I recovered the cheque for N 100,000 in our archives and I took it to the Manager, Mr. Evbota in company of Alhaji Abba Mustafa. Mr. Evbota said that the cheque was a counter cheque and he showed it to Alhaji Abba Mustafa who said ‘Cikena’.”
Later on 15 January, 1987, Mustafa went back to the bank on the same issue of N 100,000.00. He denied knowledge of the money and refused to listen further.
The plaintiff amended its statement of claim after it closed its case and the defendant had begun leading evidence in its defence although the application to amend was vigorously opposed. At the same time the learned trial Judge gave leave to the plaintiff to call further evidence and to tender expert report i.e., handwriting analyst’s evidence, even without hearing the parties before such leave was given. There is no appeal against that although the defendant complains that it was not allowed to also call expert evidence.
The first point I wish to make at the moment on the amended statement of claim is that it repeated paragraphs 5 and 6 of the original statement of claim even in spite of the evidence already led. Paragraphs 5 and 6 read:
“5. The plaintiff avers that in the course of making any withdrawal(s) the Managing Director, as afore-mentioned, who is illiterate, would either ask the plaintiff’s General Manager, Alhaji Adamu Abubakar or the defendant’s Apapa Branch Manager- (and nobody else) – to help him to write the cheque(s) (only) in his presence and after signing the cheque(s) he would (personally) present the same for payment or for issuance of drafts in favour of the plaintiff’s customers.
6. The plaintiff (shall) vigorously deny at the (trial) that it ever solicited the assistance of any of the defendant’s Officials, servants or agents on 9/7/86 or any other date at its Apapa Branch to write any cheque or a Counter-cheque nor did it withdraw N 100,000.00 on the said date from the said defendant’s Branch.”
It will be observed the emphasis with which the fact of which bank official and no one else wrote out cheques for P.W. 1, was pleaded. The said P.W. 1 in examination-in-chief said:
“Whenever I need to draw money from my bank account, I take my cheque book to the Manager of defendant bank, Apapa branch. I would give my cheque book to the Manager, Mr. Evbota, and I would ask him to write the amount I desire to withdraw on the cheque. After writing the amount, I would then sign my name on the cheque and put my company stamp. The Manager would also sign the cheque and put his stamp on it. I would then take the cheque to the counter for either cash or bank draft. I do not ask anyone else in the bank besides the Manager to assist me in writing my cheque.”
The above-quoted evidence in line with the pleading was given in order, no doubt, to discredit whatever evidence would be available from the defendant that the counter cheque was filed in by a bank official other than the Manager. In my view, it was a deliberate piece of evidence. If such evidence is shown to be untrue, the effect would be substantial on the reliability of Mustafa (P.W.1). In cross-examination P.W.1 was confronted with a number of his cheques, four of which deserve mention. They were all admitted in evidence. Exhibit 3D was issued on 23/6/86 and Exhibit 3E on 30/6/86. Exhibits 3H and 3J were issued on 29/8/86. In other words, two were issued shortly before 9/7/86 (the day the counter cheque was issued) and two were issued shortly after that date. The P.W.1 admitted that Exhibits 3D, 3H and 3J were written out by Ogbe (D.W.2) while exhibit 3E was written out by Odewusi (D.W.1). It would be recalled that it was Odewusi who wrote out the counter cheque.
With this admission in cross-examination, Mustafa (P.W.1) was discredited on an important aspect of the evidence with the clear implication that he wanted to hide the fact that there was nothing unusual for any of the bank officials to assist him in filling his cheque. Of the four cheques, Exhibits 3D, 3E, 3H and 3J, only 3D was for a small amount. Exhibit 3E was for N 123,600.00. 3H was for N223, 500.00 and 3J was for N250, 000.00. In respect of exhibit 3H, p.w.1 was asked in cross-examination if he knew one Saibu Bako, and the following was recorded:
“I do not know Saibu Bako. I have seen Exhibit 3H, it was signed by me. It is true that I issued the cheque Exhibit 3H to Saibu Bako. I remember buying sugar from him, and I paid him with Exhibit 3H. Saibu Bako is not my business partner. I now say I know Saibu Bako.”
The learned trial judge’s attention was drawn to these inconsistencies by P.W.1 by counsel for the defendant. I do not think it is difficult to reach a conclusion that P.W.1 is a dubious person – unrealiable – when the true import of what he tried to deny is understood as I have tried to show. But the learned trial judge merely observed: “These are to my mind untruths told by p.w.1 but I do not see it as any serious damage to his evidence as a whole.”‘ In my view, the learned trial judge glossed over an extremely relevant matter. The strength of p.w.1’s evidence as a whole depends largely on how reliable, how truthful he is. If he is adjudged an unreliable person as he ought to have been, there will be no difficulty in disposing of the other aspects of the evidence adduced by him.
The learned trial judge dealt with Exhibit 8 (the cheque requisition slip) and Exhibit 9 (the counter cheque) for the N 100, 000.00 in contradictory and rather unsatisfactory manner. I shall quote what he said in this regard as follows:
“The procurement and issuance of the cheque Exhibit 9 was made possible by the careless and negligent authorisation of its sale through the cheque requisition form Exhibit 8 which I am satisfied does not have the authority of P.W.1 because the plaintiffs rubber stamp impression is not affixed to the alleged signature of PW1 on Exhibit 8 – see Agbonmagbe Bank v. C.F.A.O. (1966) 1 All NLR 140. The rubber stamp impression added to the signature of PW1 would have made it complete just as it is done on the face of the cheque Exhibit 9. It is negligence on the part of the Defendant not to have spotted this lack of authority to purchase the counter cheque Exhibit 9.”
I am constrained to say, with due respect, that this is a rather misconceived approach to the evidence in this case. The evidence adduced and relied on by the defendant is that P.W.1, the Managing Director of the plaintiff company and the only signatory to its account with the defendant bank, was present himself to request for urgent withdrawal. There was no issue of mistaken identity of the man.The evidence of D.W.1, D.W.2, D.W.3 and D.W.4 on this when calmly considered is quite formidable. If that be so, how can the question of careless authorisation of a cheque arise simply because the requisition slip for the cheque was not impressed with the plaintiff company’s stamp? It is not the stamp that gives P.W.1’s signature validity and authority. The learned judge in a contradictory manner said that if the stamp had been applied to the slip (exhibit 8), it would have ‘made it complete’ just as it did to the counter cheque itself (exhibit 9) and yet he held later that exhibit 9 was used to make an unauthorised and fraudulent withdrawal on the ground that forgery was proved.
It must therefore be admitted that what ultimately operated in the mind of the learned trial judge was the alleged forgery not the absence of the stamp on exhibit 8. He said:
“On the whole, there is evidence which I believe that there was forgery of the signature of PW1 on the disputed cheque Exhibit 9, that the cheque requisition form Exhibit 8 was not authorised by PW1, and that the negligent sale of the cheque Exhibit 9 upon the unauthorised Requisition Form Exhibit 8 was responsible for the unauthorised and fraudulent withdrawal of N100, 000 from the plaintiffs account at the Apapa Branch of the defendant’s (sic) Bank. Having watched the demeanour of all the witnesses, I prefer the evidence of the plaintiffs (sic) witnesses to that of the witnesses of the defendant. I therefore find that the plaintiff has proved forgery of the signature of PW1 beyond all doubts and the plaintiff’s case has also been proved on the balance of probabilities.”
The question is whether there was forgery proved. Up to the time the plaintiff closed its case, the essence of its evidence was the mere denial of P.W.1 coming to the bank and signing exhibit 8 and 9. In the cross-examination of P.W.1, he had been confronted with various cheques bearing his signature. It was this which led the plaintiff to amend its statement of claim, after the defence had commenced, to allege forgery of exhibit 8 and 9, and also to imply fraud. An accusing finger was being pointed at the bank officials now. It was clearly no more a matter of negligence on their part even though negligence was also pleaded with particulars given of irrelevant and strictly inadmissible facts. In regard to the forgery and fraud alleged without clear particulars, all that was pleaded in paragraph 8 of the amended statement of claim was:-
“8. The plaintiff will contend that any purported signature of Alhaji Abba Mustafa on either the application to purchase counter-cheque or the counter-cheque itself on 9/7/86 is forgeries. Advantage was taken of the illiteracy of the plaintiffs Managing Director, Alhaji Abba Mustafa and his procedure in operating the plaintiff’s account to carry out the forgeries.”
In paragraph 9, it was pleaded that the plaintiff would rely on the evidence and report of handwriting experts to prove the forgery.
The expert called by the plaintiff was one Edward Kolawole (p.w. 3), an Inspector of Police attached to disputed documents section of the Federal Investigation and Intelligence Bureau. Alagbon Close. Ikoyi, Lagos. He compared the signatures on exhibits 8 and 9 (questioned signatures) with those on Exhibits 3. 3A – 3J, 4, 4A and 4B (undoubted signatures). He came to the conclusion that there were features of dissimilarity in the signatures on exhibits 8 and 9 as compared with the signature on exhibits 3, 3A – 3J, 4, 4A and 4B. Two other exhibits containing undoubted signatures of p.w.1 were added. They are exhibits 15 and 16. Exhibit 20 (same as exhibit 20A) is a comparative table of the enlarged signatures on exhibits 8 and 9 as compared with those on Exhibits 3, 3C, 3E and 3F. The witness also compared the stamp impression on Exhibits 9 with those on Exhibit 17, those on exhibit 17 being the ones personally impressed with the stamp of the plaintiff company by the witness in the course of carrying out his assignment.
Let me start with the stamp impressions. It will be recalled that the evidence of D.W.1 (Mr. Odewusi) is that when p.w.1 (Alhaji Mustafa) signed exhibit 9 (the counter cheque) in his presence at the bank, he did not have his company’s stamp on him. He brought the stamp, as he promised, before the close of business that day which was then used to stamp exhibit 9 front and back. In his examination in-chief. P.W. 3 (the handwriting analyst called by the plaintiff) said:
“I went further to compare the rubber stamp impressions on Exhibit 8 and 9 with those on Exhibit 17. I found features of identity between them, that is to say that they were produced from one rubber stamp.”
This shows that the stamp used on exhibit 9 was that of the plaintiff company. The evidence is that P.W.1, as he promised to do, brought the stamp to the bank to be used to stamp exhibit 9 (the counter cheque) after he had encashed it. This is clear evidence in favour of the defendant bank’s case that the N100.000.00 was personally collected by P.W.1 and against the denial by P.W.1. The appearance of that stamp impression on exhibit 9 cannot be explained in any way other than as given by D.W.1. This ought to have been obvious to the learned trial judge and indeed decisive of the case in favour of the defendant bank.
Further in his examination-in-chief, the handwriting analyst said he detected three fundamental defects in the signatures on exhibits 8 and 9. He gave them as follows:
A. “The first among them is the second capital letter ‘A’ under the ‘Questioned’ Column has its body formation narrower than the capital letter ‘A’ under the Undoubted ‘Column’. This feature is exhibited in the four signatures on Exhibits 8 and 9.
B. The second defect is the last letter in the signature which looks like capital letter ‘M’. The inconsistency in this last letter ‘M’ in the four signatures under ‘Questioned’ column are clear indications of the writer not conversant with his signature.
C. Another difference is the spacing between the letters that look like double ‘b’ in the signature. Under Column ‘Questioned’ the spacing between the letters ‘bb’ are not even, while under ‘Undoubted’ Column the spacing are even and consistent.”
He also said in cross-examination: “I did not say that the ‘A’s in the signatures under the Questioned Column are the same in size. What I said was that they are of narrower formation than the ‘A’s in the Undoubted Column.”
I have marked the three paragraphs of the quotation from the evidence of the handwriting analyst A, B and C respectively for easy reference in discussing their worth. As against the paragraph marked A (talking about the body formation of the capital letter A), the witness said in cross-examination:
“‘I have seen Exhibit 16. The body formation of the second letter ‘A’ in the bottom signature is narrower than the signature on the top left hand corner. I would not say it is a forgery. It is just a natural variation of the signature because a human being is not a machine. The signature cannot be the same all the time.”
Exhibit 16 contains three specimen signatures of P.W.1 taken by the handwriting analyst himself in the course of this assignment.
It will be seen that this evidence in cross-examination contradicts, or indeed neutralizes, the aspect of the evidence in examination-in-chief marked A. It suited the witness to characterise the formation of the letter A in exhibits 8 and 9 as compared with the said letter in exhibits 3, 3C, 3E and 3F as forgery simply because it is narrower in the body formation. Whereas the same narrowness discovered in one signature of P.W.1 as compared with another of his signatures was not so characterised but rather rationalised as ‘just a natural variation of the signature because a human being is not a machine. The signature cannot be the same all the time.’ Yet, later, also in cross-examination, the witness said: “I have seen Exhibit 16. There are no dissimilarities in formation in the Capital ‘A’ in three signatures in Exhibit.” One may ask, what about the so-called body formation of letter ‘A’ which is narrower in one of the signatures than in others? The witness has contradicted himself in an effort to defend a cause to maintain forgery of exhibits 8 and 9. I think no reasonable person will in the circumstances accept the characterisation made by this witness as a valid feature for regarding the signatures on Exhibits 8 and 9 as forgeries.
I now take paragraphs B and C of the quotation from the handwriting analyst’s evidence together. Part B tells of inconsistency or variation in the last letter ‘M’ in the questioned signature while paragraph C talks of differences in spacing letter ‘B8 therein. These led him to conclude that there had been forgery.But surprisingly he said in cross-examination:
”There is no variation at all in the second letter ‘A’ in the four signature(s) in Exhibits 8 and 9 in the Questioned Column. This strengthened my conclusion that the signatures on Exhibits 8 and 9 are forgeries of the genuine signatures.”
This is a most unfair volte-face engaged in by the handwriting analyst so that head or tail he would not like to be seen to be wrong. When there is inconsistency or variation he used that to conclude that there was forgery. When there is no variation that to him is evidence enough of forgery of genuine signatures. He manifested this further in what he said in evidence upon cross-examination as follows:
“The dissimilarity in the features in a disputed document as well as the similarities are looked at. But where the dissimilarities outweigh similarities that would lead to the conclusion that the signature or document or writing is forged.
I have given a negative opinion about the documents examined by me, in my report. This is also highlighted in my charts Exhibits 19, 20 and 20A. It is true I have held back evidence of similarity in the examined documents. Where negative opinion is given, positive opinion is not given side by side with the negative opinion.”
The handwriting analyst did not present a fair opinion to the court. But from what was extracted from him in cross-examination the learned trial judge was not justified in relying wholly on him. His chances of error and misinformation were such that it was most unsafe to take chances with him. Before he ended his evidence he said that the fluency of handwriting shows the literacy of the writer. With this general remark he then said: “The signatures on 3 to 3J, 4 to 4B and 16 appear to have been written by a literate person.” That is the extent to which this witness could err and mislead because on the contrary the signatures in question on those Exhibits 3, 3A to 3J, 4, 4A and 4B are those of p.w.1 who is known to be a stark illiterate who learn only to sign his name. The fact is that his ability to render his signature with near consistency is very impressive. This runs through all his signatures in the various documents (including exhibits 8 and 9) considered by the handwriting analyst and placed before the court.
I think in the present case, the learned trial judge surrendered his duty to the handwriting analyst. This was clearly wrong. He ought to have realised that there was direct evidence already led by the defendant that exhibits 8 and 9 were signed by P.W. 1 in the presence of D.W.1 in the bank on 9 July, 1986. The circumstances in which that happened were testified to by four witnesses. It was a strong piece of evidence which could be destroyed only if it was shown that they lied. It was this that probably led the plaintiff to amend the statement of claim and to procure the services of a handwriting analyst.
The learned trial judge did not however find that they lied. He indeed said in comparing the evidence of P.W.1 with the evidence by the defence:
“Learned counsel for the Defendant referred to the evidence of P.W.1 where he denied but later agreed under cross-examination that some other officers beside the Apapa Branch Manager of the plaintiff (sic: defendant) Bank alone assists him to write his cheques and the fact that P.W.1 denied knowing Saibu Bako but later under cross-examination admitted knowing him. These are to my mind untruths told by P.W.1 but I do not see it as any serious damage to his evidence as a whole.
On the other hand there are minor inconsistencies also in the evidence of the Defendant’s witnesses which do not materially affect the core of the evidence given.”
The said minor inconsistencies in the evidence of the defence are in respect of: (a) The evidence of d.w.1 (Odewusi) that d.w.4 (Dinakin) was present when P.W.1 (Mustafa) signed exhibit 9, the counter cheque. What D.W. 4 said was that she was present when exhibit 8, the cheque requisition slip, was signed by Mustafa. It was that slip she used to procure the cheque book from which the counter cheque leaf was torn off. In her presence Mustafa requested Odewusi to write out the cheque for him. This was done and the cheque leaf was torn off in the presence of Dinakin and given to Mustafa to sign. After Dinakin was handed back the cheque book by Odewusi she walked away with it to return it to d.w. 2 (Ogbe). Obviously, Odewusi assumed that Dinakin saw Mustafa sign the loose cheque which had then been handed to him to sign. This is hardly any inconsistency that undermines a witness’s credibility. Hence the learned trial judge regarded it as minor. (b) Odewusi also said that Mustafa signed the front and back of the cheque. This is in fact true. But the sequence in which he gave that evidence may suggest that the back was signed at the time the front was signed although that is not necessarily conclusive from the evidence. He said: “After writing the cheque I passed it to Alhaji Abba Mustafa for his signature. He signed it both at the front and at the back, but he did not put his company’s rubber stamp impression on the cheque.” But d.w.3 (Omosuyi) who paid out the money said: “After collecting the money, Alhaji Abba Mustafa signed his name behind the cheque.”
The sequence may not be strictly accurate because if the cheque had been signed at the back in the presence of odewusi, then from the evidence of omosuyi there would have been two signatures at the back. Again, this is no error that goes to credit at all. It follows that since the learned trial judge himself recognised this, the conclusion he must reach, and which of course is implicit in the much he said from the passage in his judgment I quoted above, is that the witnesses for the defendant are truthful witnesses. But to get round the effect of that, he took umbrage under the well disapproved method of finding which puts all effort into a cloistered phrase, ‘I believe’. I have earlier quoted the relevant passage in his judgment in this regard which also includes; ‘Having watched the demeanour of all the witnesses, I prefer the evidence of the plaintiffs (sic) witnesses to that of the witnesses of the Defendant.’
In Oladehin v. Continental Textile Mills Ltd., (1978) 2 S.C. 23 at 32, the Supreme Court observed:
“…. it is the duty of the trial judge to evaluate relevant and material evidence and decide the issues raised on the pleadings before him. He cannot abandon that duty by taking refuge in the clouds of ‘I believe’ and ‘I do not believe’ without really evaluating the evidence of vital witnesses. If he abandons this duty, the use of the expressions ‘I believe’ and ‘I do not believe’ will not estop the appeal court from itself evaluating the evidence and seeing whether there is any justification for the use of such expressions.”
The way to go about civil cases to decide where the balance tilts to is to follow the procedure in Odofin v. Mogaji (1974) 4 S.C. 91 at 94. It is also the law that where the consideration of documentary evidence to resolve a relevant issue in a case is principally involved, the demeanour of witnesses can hardly play any part.
In the present case to decide whether the signatures on the said Exhibits 8 and 9 were forged, has nothing to do with the demeanour of the witnesses but with the impression to be got from the evidence of the handwriting analyst and a close study of the various documents tendered before the court: see Olujinle v. Adeagbo (1988) 2 NWLR (Pt.75) 238 at 254 S.C. The demeanour relied on by the learned trial judge in the present case was unwarranted and must therefore be ignored.
I think there is good reason to treat the evidence of an expert called by a party in certain circumstances in some cases with studied caution. Some experts may be unduly influenced in their opinions by the prior briefing they received from those who seek their services. This may or may not be deliberate. But there is no denying the fact that once that possibility is there a court ought to be circumspect in acting on such an opinion unless in very clear cases. The appellant referred to a passage in Phipson on Evidence, 13th edn., paragraphs 27 – 35 page 575. I have, in the absence of that edition, found the same passage in the 12th edn., paragraph 1227 page 498 which reads:
“The testimony of experts is often considered to be of slight value, since they are proverbially, though perhaps unwittingly, biased in favour of the side which calls them, as well as over-ready to regard harmless facts as confirmation of preconceived theories; moreover, support or opposition to given hypothesis can generally be multiplied at will.”
I think this is a useful and timely caveat. In my view, where the other party expresses a desire and applies to call his own expert witness, he should be given every facility to do so. This will give a real opportunity and challenge to the court to perform its function of conflict resolution. It must be remembered that experts give evidence and do not decide the issue: see Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon (1968)1 All E.R. 354. Also, the duty of experts “is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusion, so as to enable the judge or jury to form their own independent judgment by the application of those criteria to the facts proved in evidence.” See
Davie V. Edinburgh Magistrates, (1953) S.C. 34 at 40; paragraph 1227 Phipson on Evidence, 12th edn. Page 497. Expert witnesses are in the same position as witnesses of fact whose evidence must be evaluated and weighed by the court for their worth: see United States Shipping Board v. The Ship, St. Albans (1901) A.C. 632 at 642.
In the circumstances of the present case, it was most unfortunate that the learned trial judge did not see the need to allow the defendant to call expert evidence which it applied for. The plaintiff alleged forgery. It had a duty to prove that satisfactorily. It attempted to do so by calling a handwriting analyst. On the other hand, the defendant alleged that the documents in question were signed by P.W.1. It gave direct oral evidence of eye-witness account in proof. Under section 99 of the Evidence Act it is the defendant’s duty to offer this proof. Section 99 reads:
“99. If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.”
In view of the expert witness called by the plaintiff, the defendant wanted to reinforce the direct oral evidence it led, or at least to controvert the plaintiff’s expert evidence, by a similar evidence. This it felt it could do by calling an expert witness in handwriting. But the learned trial judge denied it this fair opportunity. I do not think he was justified to have done so. His attitude in this regard did not ensure a fair hearing. This affected his decision since he based his decision materially on the expert opinion before him.
I think in this particular instance learned counsel for the plaintiff wrongly relied on Order 32, rule 17 of the High Court of Lagos State (Civil Procedure) Rules and the learned trial judge misapplied it to deny the defendant the opportunity to call expert evidence. The rule reads:
“17. If the party opposed to the party beginning calls or reads evidence, the party beginning shall be at liberty to reply generally on the whole case, or he may, by leave of the Court, call fresh evidence in reply to the evidence given on the other side, on points material to the determination of the issues or any of them, but not on collateral matters.”
In view of section 99 of the Evidence Act, the defendant had a duty to prove the signature as that of P.W.1. In that sense it was the party beginning on that issue. It did lead direct oral evidence. The plaintiff who is opposed to it on that issue then called expert evidence to show forgery. The defendant was entitled, with leave of court, to call fresh evidence in reply to that point material to the determination of the issue of whose signature was on exhibits 8 and 9. The said rule 17 should be read with some flexibility having regard to section 136(2) of the Evidence Act depending on who is perceived as the party beginning a case as a whole or a particular material issue in a case to determine where the burden of proof lies: see Osawaru v. Ezeiruka (1978) 6 & 7 S.C. 135 at 145-146: Union Bank (Nig.) Ltd. v. Ajagu (1990) 1 NWLR (Pt. 126) 328 at 339 – 343. I think the interest of justice demands this interpretation.
A court is entitled to accept the evidence of an expert if it is credible, particularly if it is not controverted or challenged and comes from an expert with demonstrable skill. But the evidence of an expert is generally an aspect of the entire evidence to be evaluated by a court. The trial court must fully be in control of all the evidence before it and must not abdicate its role to perform its primary duty of assessing the evidence and forming its clear opinion in relation thereto including any expert evidence. In paragraph 89, Vol. 17 of Halsbury’s Laws of England 4th edn., it is said inter alia:
“The proof of handwriting may require either lay or expert evidence, or both, depending upon the point at issue. A person’s handwriting may be proved by the opinion of witnesses who are acquainted with it. The knowledge necessary for this purpose may have been acquired by the witness at any time having (1) seen the party write, or (2) received communications purporting to come from him in answer to those addressed to him by the witness, or (3) observed documents purporting to be in the party’s handwriting in the ordinary course of business…
The opinions of handwriting experts are admissible to decipher words beneath obliterations, erasures or alterations, although it is for the court to determine what the words are. Experts may also give their opinions as to whether handwriting is natural or imitated, and whether it shows points of comparison, but it is for the court to determine whether a particular piece of writing is to be assigned to a particular person, and documents may be submitted to the court for comparisons to be made. The weight to be attached to any expert evidence depends upon the skill of the expert.” (Emphasis mine)
In Wilcox v. The Queen (1961) 2 SC NLR 296 it was said at Page 298: “It is not unusual for the Courts, in a clear case, to form their own opinion as to handwriting…” Under section 107(1) of the Evidence Act the comparison of signature, writing etc. can be made by the court. The section reads:
“107(1) In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose.”
See also the decision of this Court in Aina v. Jinadu (1992) 4 NWLR (Pt. 233) 91 at 107. I wonder why the learned trial judge did not take advantage of the documentary evidence before him by comparing exhibits 8 and 9 with exhibits 3, 3A – 3J, 4, 4A and 4B as well as other documents (such as exhibit 16) which were admitted in evidence through the handwriting analyst to form his opinion as to how true it is that the signatures on Exhibits 8 and 9 were forged, Miss Nsa, learned counsel for the defendant, who conducted the case in the lower court, exceeded herself in her performance. Her cross-examination completely discredited the handwriting analyst or at any rate, successfully challenged the basis of his opinion and conclusion. In her final address to the court, she spotlighted all the weaknesses in the so-called expert evidence. The learned trial judge did not allow all these to guide him.
Apart from the way in which I have shown that the conclusion of the handwriting analyst in this case that the signatures on exhibits 8 and 9 are forgeries has been discredited, I have myself compared the said questioned and undoubted signatures. I think it is absolute mischief to suggest that the signatures on exhibits 8 and 9 are forgeries. The comparative charts (exhibits 20 and 20A) made by the handwriting analyst carry the enlarged characters of the said signatures in comparison with the undoubted signatures. The similarities in the signatures are astounding and in my view beyond contention. There is nothing to suggest simulations in their formation; no blunt end; no ink deposit at the beginning and end; no evidence of pen lifts. The cross-examination of the handwriting analyst confirms these. He himself admitted that: “It is true that forgeries have blunt ends.” I am satisfied that the signatures are those of one person, namely Alhaji Abba Mustafa (p.2.1). In Appea v. The King (1951) 13 WACA 173, it was held that an Appeal Court is entitled and competent to form its own opinion by examining and comparing documents in cases of disputed handwriting.
When forgery is alleged and relied on in a civil case, the burden of proof is on the person so alleging. In accordance with the provision of section 137(1) of the Evidence Act if a specific allegation of crime in the pleadings is made the basis or foundation of a claim or action or defence, it must be proved beyond reasonable doubt: see Ikoku v. Obi (1962) 1 SC NLR 307; Nwobodo v. Onoh (1984) 1 SC NLR 1; Adelaja v. Fanoiki (1990) 2 NWLR (Pt. 131) 137; Anyah v. African Newspapers of Nigeria Ltd. (1992) 6 NWLR (Pt. 247) 319.
In the present case, a thorough understanding of the plaintiff’s pleadings and the evidence as a whole will reveal that the case is not one of negligence but forgery and fraud even though the fraud is only by necessary implication from the pleadings. But it was obviously considered so by the learned trial judge when he referred to the cheque as having been ‘dishonestly paid’ and to the ‘fraudulent withdrawal of the money from the plaintiff’s account…’ Neither forgery nor fraud has been proved in any sense, I am eager here to commend Mr. Oladeji, learned counsel for the defendant/appellant, who argued assiduously in the course of proffering oral argument in furtherance of the briefs of argument of the defendant/appellant when I was nearly of the impression that the case was decided on negligence. He drew the Court’s attention persistently to the fact that forgery and fraud were relied on by the plaintiff and that the trial court leaned in that direction, ultimately reaching a decision in support of the plaintiff’s standpoint.
I have come to the conclusion that there is merit in this appeal. It is accordingly allowed. The judgment of the lower court together with the order for costs is set aside. The claim is dismissed. In the circumstances, the cross-appeal has no foundation and the issues raised therein as to payment of interest on the amount awarded do not arise. It is accordingly dismissed. I award the defendant/appellant N800.00 as costs in the lower court and N1, 400.00 as costs in this Court in the appeal. I also award costs of N6000.00 in respect of the cross-appeal to the defendant/respondent in the cross-appeal.
Other Citations: (1994)LCN/0187(CA)
