Keystone Bank Limited V. Marketing and Media Limited (2016)
LawGlobal-Hub Lead Judgment Report
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO,J.C.A.
The Appellant filed this appeal against the judgment of K. A. JOSE, (Mrs.) J., of the Lagos State High Court Lagos delivered on 2nd May, 2012.
The suit in the lower Court was commenced by a Writ of Summons and Statement of Claim dated 6th May, 2009.
“i. The sum of N20,000,000.00 (Twenty Million Naira) as damages for breach of contract.
ii. The sum of N10,000.000.00 (Ten Million Naira) as damages for loss of use of money at the said time.
iii. 21% interest on the money in the Claimant’s account from October, 2008 until same is paid.
iv. A declaration that the deduction of N869,541.25 from the Claimant’s account without its consent is unauthorized, is illegal.
v. N1,000.000.00 (One Million Naira) being cost of this litigation.”
The contention in this matter was that Respondent operated an account Number 1501000036 with Appellant’s Bode Thomas Branch, Surulere for the purpose of its business and had a credit of N8,000.000.00 (Eight Million Naira) in its accounts. The Appellant refused to honour cheques’ claim by claimant
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and placed a restriction on the said account while it deducted sums of N869,541,24.00 from the account without Respondent’s authority or consent.
At the conclusion of the trial, judgment was entered in favour of the Respondent. The Appellant dissatisfied filed the notice of Appeal dated 23rd July, 2012 against part of the judgment of the lower Court.
The Appellant filed its Brief of Argument dated 20th November, 2013 filed 29th November, 2013. Same was settled by Kunle Ayorinde, Esq. of Layonu & Co. together with its Reply Brief of Argument filed and dated 21st May, 2015.
The Respondent’s Brief of Argument is dated and filed 27th February, 2014 and same was settled by Ademola Ekundayo Esq., Ayodele Osanyinlusi of Hill City Associates.
Appellant formulated 3 issues for determination thus:
1. “Whether the learned trial judge was right in law to hold that the Appellant was a busy body by the filing of Exhibit “D3”, that is, the Interpleader application dated 4th December, 2008 at Federal High Court in Suit No: FHC/L/CS/5391/2008 between Marketing and Media Limited & 3 Ors. v. Theodore Okwu Ejike & 4 Ors. when there
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were clear provisions for the said procedure in Order 29 Rules 3(1), 4(a), (b) and (c) of the Federal High Court (Civil Procedure) Rules 2000, the applicable Rules of Court at the material time? (Distilled from Ground 1).
2. Whether the learned trial Judge was right to hold that the Appellant was in breach of its contractual obligation to the Respondent because there was enough funds in the Respondent’s account when Exhibits “P1”, “P2” and “P3″ were issued on 26th November, 2008, 28th November 2008 and 18th February, 2009 respectively and the said instruments were not honoured on presentation? (Distilled from Ground 2)
3. Whether the learned trial Judge was right to have found for the Respondent on the reliefs granted based on the oral and documentary evidence before the lower Court? (Distilled from Ground 3).”
The Respondent on the other hand adopted the issues formulated by the Appellant. Therefore these issues shall be the issues for determination in this appeal. I shall resolve issues 1 and 2 together.
ISSUE 1 AND 2
On the first issue, Appellant’s counsel submitted that there was no dispute on the action filed at the Federal
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High Court FHC/L/CS/5391/2008 between Marketing & Media Ltd & 4 Ors as a result of an in-house dispute as admitted by sole witness of Respondents and that this was an admission against interest and vindicates the restrictions placed by Appellant on the Respondent’s account. He referred to ODUTOLA v. PAPERSACK NIG. LTD [2006] 18 NWLR (Pt. 1012) 470 at 494 Paras C – D.
He referred to Exhibit “D4” at pages 53 to 60 which is the Consent Judgment, that flowing from the above, it was undisputed that the in-house dispute was settled by the Respondent. He referred to Exhibit “D3” Interpleader order of Court in FHC/L/CS/5391/08 directing it on the management and/or running of the Respondent’s account pursuant to the provisions of the Federal High Court Rules, 2000 in the suit against some of its directors. He referred to Order 29 Rule 1 (1) (a) of Federal High Court Rules, 2000. That the in house dispute led to the removal of former directors and the dispute was finally settled in Exhibit “D4” terms of settlement 6th March, 2009 at pages 53-58 of the records.
He submitted that the Respondent was aware of Exhibit “P6” dated 20th October
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2008 before the bank instrument of 26th November, 2008, 28th November, 2008 and 18th February, 2009 Exhibit “P1”, “P2” and “P3” respectively. That Exhibit “P1” – a bank instrument dated 26th November, 2008 called for caution as it was in favour of MARKETING and MEDIA LTD within 2 days another was lodged Exhibit “P2″ in favour of Hill City Associates the law firm appearing for 1st to 3rd Defendant against the plaintiffs in the FHC/L/CS/18391/08 which meant that the 1st Plaintiff who in the case is also paying for legal services of the Respondent’s counsel in the same suit. He referred to pages 7 and 48, 53, 59 to 60 of the record which all contains the names of beneficiary of Exhibit P2 and the name of counsel and law firm mentioned above respectively. He contended that Ex3” ishibit “Psued in favour of Emmanuel Ajufo was already cancelled before presentation, how then could it have been honoured.
Furthermore, considering the above inconsistencies and in house disputes, the Appellant tried to ensure due diligence and maintain high standard of professionalism as expected in a banker/customer relationship filed an Interpleader application – Exhibit “D3” in
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the same suit filed by the Respondent. He therefore submitted based on the provisions of the Federal High Court Rules applicable at the time that the lower Court erred in calling the Appellant busy bodies whilst protecting the Respondent’s monies.
He submitted that the case of Respondent at the lower Court was not that cheques were dishonoured as a result of change in signatory in 2006 but in 2003 to 2009 respectively.
He relied on UNITED BANK OF AFRICA v. GODAM SHOES INDUSTRIES [2011] 8 NWLR (Pt. 1250) 590 at 636 Paras C-D; AFRICAN NIG. PLC v. BARRISTER SUNNY A. ANUEBUNWA [2012] 4 NWLR (Pt. 1291) 560 at 579, Paras B-C.
Respondent submitted that this issue is not relevant to the determination of the appeal because the illegality on the Respondent account was only filed on 4th December, 2008 a few days after the Exhibit “P1” and “P2” were dishonoured and Exhibit “D3” cannot take a retrospective effect to correct the Appellant’s anomaly on Exhibits “P1” and “P2”.
He disagreed that any of the relevant provisions of the Federal High Court Rules unilaterally placed a restriction on a customer’s account and also rubber stamp its
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action in retrospect. Respondent submitted that even if that were to be the case, he agreed with the lower Court when it held that the Appellant was a busy body by filing Exhibit D3.
He referred to Order 29 Rule 1 (1) (a) of the Federal High Court Rules, 2000, KALA v. POTISKUM [1998] 3 NWLR (Pt. 540) 1 SC and Black’s Law Dictionary (6th Edition) and submitted that there was no evidence as to any party making in respect of the Respondent’s funds in the Appellant’s custody, neither was there an expectation of being sued in that respect. He referred to pages 12 to 13 of the records which is the judgment of the lower Court and submitted that no complaint was made by any directors or customers of the Claimant/Respondent in respect of the accounts and its running, also the Defendant/Appellant was not made a party in the previous suit, nor was any Court process served on it. It is a known fact that it is not a commercial bank/debtor’s duty to pry into the operations, management and activities of its customers or creditors; hence this act of the Defendant/Applicant makes it a mere busy body.
In reply, the Appellant submitted that Exhibit “D3” shows
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that there was contention that an in-house dispute extended amongst Respondent’s directors before October 2008before Exhibit “P1” and “P2” which was issued in November, 2008.
On interpretation of Order 29 of the 2000 Civil Procedure Rules of the Federal High Court, he referred to portions of Exhibit D3 at page 50 of the record to show that there were evidences of adverse claims in respect of the Respondent’s funds in possession of the Appellant contraryto the Respondent’s argument. He referred to several correspondence addressed to the Appellant.
On issue two, Appellant referred to WEMA BANK PLC. v. OSILARU [2008] 10 NWLR (Pt. 1094) 150; UBA v. CODAM SHOES INDUSTRIES PLC. (Supra), to establish the banker/customer relationship that exists between the parties as a contractual one.
He emphasized that the restriction was not due to lack of funds, but due to specific developments as a result of the obligation imposed on the Appellant, he referred to Exhibit “P6”.
He submitted that the witness of the Respondent at page 148 of the record was not truthful, hence his testimony is unreliable because Exhibits “P1″ to P3” were issued
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after Exhibit “P6” making the Respondent aware of the restriction on its account, and still issued the above referred instruments, Exhibits “P6” complained about the restriction but the Respondent intentionally issued “P1” & “P2” in anticipation of litigation, Exhibit “P3” was issued during the pendency of the Federal High Court case before Consent Judgment was delivered on 6th March, 2009 and that there was no evidence that the Appellant honoured any cheque from the Respondent in October 2008 after Exhibits “P9” and “P10” were filed at Corporate Affairs Commission.
He submitted that the oral evidence of Respondent’s witness cannot in law contradict content of Exhibit “P6” he relied on ALHAJI S. ADETORO v. UNION BANK OF NIGERIA PLC [2008] 13 NWLR (Pt. 1104) 255 at 277 Paras E; AGBAREH v. MIMRA [2008] 2 NWLR (Pt. 1071) 378 at 41l Paras A-B.
He contended that considering the change in signatory in October, 2008 as shown by Exhibit “D2” at pages 45 of the record, the learned trial judge did not test the authenticity of the signatories of Exhibits “P1-P3” or any other instruments before the issuance of the said exhibits. He then submits that
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there was no evidence that the existing signatories to the Respondent’s account before the change of signatory in October 2008 were dishonoured. He further submitted that considering that the change in signatory was a day after Exhibit “P6”, the Appellant was bound to apply reasonable care and skill in paying out Respondent’s funds to unauthorized persons.
He further gave reasons why Exhibit “P3” was not honoured based on the fact that the instrument was cancelled before it was presented and that the terms of settlement in Exhibit “D4” has not been entered as Consent Judgment. He referred to Order 29 Rules 3(1), 4(a), (b) & (c) of the Federal High court Rules 2000 that the consent of the Respondent or any Court order is not required before such Interpleader application could be filed, however, the Appellant must show that it does not have any interest in the subject matter.
He urged the Court to hold based on the steps taken by Appellant before and Exhibit “D3” could not be been seen to have breached any contractual obligation with the Respondent; rather the Appellant took reasonable care and skill to protect such funds.
The
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Respondent’s counsel submitted that a banker-customer relationship existed between the two and that the Respondent still had sufficient funds in its account to cover the amount contained in said Exhibit as at the time same was dishonoured. He relied on ACCESS BANK PLC v. MARYLAND FINANCE CO. & CONSULTANCY SERVICE [2005] ALL FWLR (Pt. 251) 305 at 320-321.
He pointed out that the Appellant acted with impunity in dishonouring the cheques of the Respondent, under the reliance of a case between the directors, even when evidence before the Court proved that this had nothing to do with the signatories. Also, the Appellant can only place restriction on the Respondent’s account with the Respondent’s consent or a Court order, as there were no irregularities to the Respondent.
He repeated his submission in Issue 1 and stated expressly that the Appellant had no reason to freeze the Respondent’s account, as there was no evidence of irregularities or fraud in the Respondent’s account.
Responding to the Appellant’s submission that Respondent was aware of the said restriction, Respondent submitted that what was expected of a diligent banker was a
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prompt removal or withdrawal of the said restriction. He further contends that it is immaterial whether or not the Respondent was aware of the existence of such restriction, what is material before the Court is: Was the restriction proper and legal? Was there any valid ground for a reasonable and diligent banker to place such a restriction? Did the restriction affect the Respondent in its business? He therefore on this basis urged the Court to resolve issue 2 in favour of the Respondent.
This first issue revolves round the provision of Order 29 (1) (a) of the Federal High Court (Civil Procedure) Rules, 2000 and whether it was correctly applied by the Federal High Court under the circumstances. It provides:
“Where a person is under a liability in respect of a debt as in respect of any money, goods or chattels and he is, or expects to be sued for or in respect of that debt or money or those goods or chattels by two or more persons making adverse claims thereto; or
The person under liability as mentioned in Sub-rule (1) (a) of this rule or, as the case may be, the sheriff, may apply to the Court for relief by way of
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Interpleader.”
Paragraphs 3 to 8 of the Statement of Claim are averments on various sums totaling over N7,000,000.00 (Seven Million Naira) at all material times were not honoured by the Appellants in breach of her duties. This is between 26th November, 2008 and 1st ofFebruary, 2009 simply because the Appellant received notification from the former company secretary that the removal of former directors was illegal. For better appreciation, the Claimant/Respondent averred as follows:
3. “At all material times, the Claimant maintained account number 15010100036 at the Bode Thomas, Surulere branch of the Defendant, which is well known to the Defendant that the account is operated for the purposes of and in connection with the said business.
4. On the 26th day of November, 2008 the Claimant drew a cheque upon the said account for N2,800,000.00 (Two Million Eight Hundred Thousand Naira only) payable to Marketing and Media Ltd. the said cheque was paid into Marketing and Media account at Zenith Bank Plc. but the Defendant failed and/or refused to honour the cheque.
5. On the 28th of November, 2008 the Claimant drew a cheque upon the said
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account for N1,000,000.00 (One Million Naira only) payable to the Hill City Associates. The said cheque was paid into Hill City Associates account at Bank PHB Maryland and that the Defendant refused to honour the cheque and the cheque was later returned to Hill City Associates.
6. On the 18th of February, 2009 the Claimant drew a cheque upon the said account for N3,077,000.00 (Three Million and Seventy-Seven Thousand Naira only) payable to Mr.Emmanuel Ajufo, former Managing Director and former signatory to the Account and he tried to cash the cheque but the Defendant Bank refused to honour the cheque.
7. On these days, and at all material times thereafter, the Claimant’s account was in credit in excess of the amount of the said cheques stated in Paragraphs 4, 5 and 6 above.
8. The Claimant avers that its account is in credit in the excess of N8,000,000.00 (Eight Million Naira) at all material times when the cheques were not honoured by the Defendant.”
The Defendant/Appellant naturally denied the above averments and averred in Paragraphs 4 to 10 of his Statement of Defence as follows:
4. “The defendant denies the averments in
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Paragraphs 4 & 5 of the Statement of Claim and states that the Defendant did not honour the Claimant’s cheques of 26/11/08 and 28/11/08 due to the in-house problems of the Claimant as to the actual and authentic signatories to the Claimant’s account number 15010100036.
5. Further to the above, the Defendant received a letter dated 3/11/06 notifying the bank of the removal of Mr. T. O. E. Ekechi and Bidwell Okere as authorized signatories to the Claimant’s account while Mr. Emmanuel Ajufo and Isah Aliyu were nominated to replace them. The Defendant pleads and shall rely on the letter dated 3/11/06 at the trial of this suit.
6. In confirmation of the in-house dispute referred to in Paragraph 4 above, the Defendant also received another letter dated 23/10/08 notifying the bank of the removal of Mr. Emmanuel Ajufo as an authorized signatory to the Claimant’s account. The Defendant pleads and shall rely on the letter dated 23/10/08 at the trial of this suit.
7. The Defendant further states that before the purported issuance of the two cheques of 26/11/08 and 28/11/08 respectively, the Claimant and some directors had on 27/10/08 instituted in Suit No: FHC/L/CS/5391/08 at
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the Federal High Court against other directors of the Claimant herein due to the in-house problem/dispute.
8. The Defendant denies the averment in Paragraph 6 of the Statement of Claim and states that the Defendant did not honour the cheque of 18/2/09 issued in favour of Emmanuel Ajufo due to the fact that:
a) The Defendant had filed an application dated 4/12/08 seeking for direction on the management of the Claimant’s account in Suit No: FHC/L/CS/5391/08 which was still pending then. The Defendant pleads and shall rely on the application dated 4/12/08 at the trial of this suit.
9. The Defendant denies the averments in Paragraphs 9, 13 and 14 of the Statement of Claim and states that it has not breached any contract of duty between the Claimant and the Defendant but rather protected the interest of the Claimant by seeking for the Court’s direction in management of the account due to the in-house dispute between the Claimant’s directors, hence the Claimant did not lose anything due to the Defendant’s professional diligence in not allowing any director to withdraw money from the account to the detriment of other directors.
10. The Defendant
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denies the averment in Paragraph 10 of the Statement of Claim and further repeats the averment in Paragraph 9 above. The Defendant states that the reasons for not honouring the Claimant’s cheques in question were stated and contained in its application dated 4/12/98 before the Federal High Court seeking for direction.”
The earlier reproduced provision of Order 29 of the Federal High Court (Civil Procedure) Rules is usually followed in matters of attachment/execution but not exclusive to such situation. From the rules of Court, only a person who qualifies as the holder of goods or money for and on behalf of another can rely on the provision and same is resorted to when there is a situation of adverse claims thereto. See IJEWERE v. ERIBO (2014) LPELR-23263 (CA), where per IYIZOBA, JCA held that:
“Furthermore the Appellant was right in his submission that Interpleader summons procedure is applicable when the goods and chattels of a person not named in the writ of Fifa is attached and cannot be the procedure to be followed by a party to the suit against whom the writ was targeted and executed…”
In this case, what we have here is simply a
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request for a direction by the Appellant to the Court with respect to the running of the account and a preservation of the said account. See page 47 of the record.
The pertinent question to be asked is whether the Appellant properly invoked the application of the rules. The provision of the Rules are in black and white and it only relates to a situation where a “person is under a liability”.
Was the Appellant under a liability in respect of the funds in the Respondent’s account? Was there a fear of dissipation of such funds; if so, by whom? A determination of these posers will resolve the issues herein.
The fund was in the Appellant’s care; as a bank, it owed a duty of care to the owner of the funds. See AFRIBANK NIG. LTD. v. BARRISTER S. A. ANUEBUNA (2012) 4 NWLR (Pt. 1291) 560; U.B.A. v. GODAM SHOES INDUSTRIES (Supra).
There is no doubt that the owner of the fund in the account of the Respondent herein is Marketing and Media Limited, a Corporate Liability Company, who undoubtedly has accredited signatories on its mandate card with respect to the account. From the records, it is not disputed that signatories to the account
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changed in 2006 and 2008 and same was communicated to the Appellant at the relevant time upon which the latter acted upon. See pages 69 of the records. The cheques herein were presented before the Interpleader proceeding leading to this appeal was commenced. The signatory on ground was that of 21st October, 2008 and no communication was sent from the Respondent that it had changed them or that the Appellant should not honour the cheques from those signatories. Indeed, there is evidence on record that the payment of salary was made on the account subsequent to the change of signatories in 2008. See page 61 of the record, see also Paragraph 6 of the Claimant’s witness additional statement on oath at page 63 of the records. At this juncture, it is not acceptable as claimed by the Respondent that this could have been responsible for the refusal to honour the cheques and the filing of the Interpleader summons.
With respect to the issue bothering on in-house dispute as alleged by the Appellant, it is obvious that this contention emanates from a letter from the former Company Secretary to the Appellant that there was a dispute among the management, but from
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the evidence on record, there was no communication to the Respondent for clarification with respect to the alleged in-house dispute, neither is it anywhere stated that the Secretary or Directors allegedly removed, were signatories to the relevant account.
There was a restriction on the account, hence no payment on cheque presentation before the application to Court. Therefore, I agree that from the evidence of PW1 which was not shaken in cross examination; the dispute at the Federal High Court had nothing to do with the signatories in the account and did not affect authority to pay. See pages 130 to 132 of the record. DW1 admitted that much at pages 138 to 140 of the record, thus:
“I did not know whether the directors were signatories to the account or not, he did not have order of Court to place a restriction on the account but we received a letter from the company saying that the last set of signatories were a fraud. The letter is in my file in the office. It was after the restriction was placed that we filed Exhibit D9.”
From the extract above, the Appellant clearly admitted the requirement of acting without clear authority, consent,
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notification and caution, he failed to back his reason with proof – the letter alleging fraud ought to have been tendered.
It is clear at this stage that the Appellant had not exercised care in their dealings. See OLAM NIG. LTD. v. INTERCONTINENTAL BANK LTD. (2009) LPELR-8275. In AFRIBANK NIG. PLC. v. BARRISTER S. A. ANUEBUNWA (Supra), OGUNWUMIJU, JCA, relying on the case of STB LTD. v. ANUMNU (Supra), per ADEKEYE, JCA (as he then was) held as follows:
“The legal relationship between a bank and a customer based on contract is that of creditor and debtor, or principal and agent. The creditor/principal being the customer, and the debtor/agent being the bank. The contractual relationship imposed a duty of care on the bank, the breach of which will impose liability for negligence”
As noted above, the relationship is equally that of principal and agent so that duty of care on the banker by the customer represents the instruction of the principal to this agent to pay out, the amount stated on the cheque to the payee endorsed on the cheque. See: AFRIBANK NIG. PLC v. A. I. INVESTMENT [2003] FWLR (Pt. 141) at 184; ACCESS BANK v. MARYLAND
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FINANCE COMPANY AND CONSULTANCY SERVICE [2005] 3 NWLR (Pt. 913) 460 at 467; BALOGUN v. N.B.M. [1928] 3 SC 155; ACCESS BANK v. UGWU [2013] LPELR-20735 (CA).
Flowing from the above, the Appellant failed to discharge the burden on him justifying the restriction order and refusal to honour the cheques. Section 132 of the Evidence Act, 2011 states:
“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”
On the other hand, Section 136(1) reads:
“The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other.”
I agree with the findings of the lower Court when she held at page 158 of the record that:
“On this, the Court must say that this was not the pleading of the defendant and no evidence was put before the Court that the Claimant is a different legal personality from the Marketing and Media limited which was the party in Suit
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no: FHC/L/CS/5391/08. The fact that its assets and liabilities were shared does not mean that the Company was wound up or that its legal personality is no longer the same.”
Instead of replying the Claimant’s letter, Exhibit “P5” stating the reason(s), if any, for refusing to honour the cheques, the Appellant hastily resorted to filing the application at the lower Court. It amounted to crying wolf where there was none.
The Appellant had no business in invoking the Interpleader jurisdiction of the lower Court at the time it filed the application because there was no conflict or contending claim as to the signatories to the account nor contrary instruction as to the signatories, to have warranted such an application in the Court.
I must say in clear terms that the Appellant was in clear breach of its contractual obligation it owed to the Respondent.
On this note, I resolve Issue 1 & 2 in favour of the Respondent.
ISSUE III
The Appellant submitted that the complaint here is against the totality of the evidence adduced at the trial upon which the trial Court found for the Respondent and not on the specific finding of
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fact or any document. He cited DANBOYI v. SA’ADU [2011] 15 NWLR (Pt. 1269) 1 at 16 Paras D – E; C.P.C. v. SENATOR v. AKUBU GARBA LADO [2011] 14 NWLR (Pt. 1266) 40 at 73 Paras 7 – G.
He contended that there was no documentary evidence from any parties to show that any payment was made by Appellant from the Respondent’s account in October, 2008 after the purported change in signatories. He said the findings of the lower Court amounted to speculations, and that it is not the function of a Court of law to speculate. He relied on IKENTA BEST (NIG.) LTD v. A.G. RIVERS STATE [2008] 6 NWLR (Pt. 1084) 612 at 649 Paras F-G; AGBI v. OGBE [2006] 11 NWLR (Pt. 990) 65; CIVIL, DESIGN CONSTRUCTION NIG. LTD v. SCOA NIG. (2007) 6 NWLR (Pt. 1030) 300 at 366 Paras G – H; FIRST AFRICAN TRUST BANK LTD v. PARTNERSHIP INVESTMENT COMPANY LTD. (Supra).
He submitted that the lower Court erred in holding at page 152 of the record that Appellant’s failure to tender the rules and regulations pleaded in respect of deduction made in the Respondent’s account for Interpleader’s application should be held against them. He referred to Section 167 (d) of the Evidence Act.
He
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submitted that Exhibit “P4” at page 20 of the record shows deduction of the Respondent (N200,000.00) as costs of professional fee paid to the firm of Adedipe, Esq. for Interpleader proceedings and others were for clearing and value added tax and tariffs which were lawful deductions that need no rules or regulation.
He relied on MANTEC WATER TREATMENT NIG LTD v. PETROLEUM (SPECIAL) TRUST FUND (2004) 5 NWLR (Pt. 1058) 451 at 487 that the Court is entitled to take judicial notice of notorious fact. He further submitted that the damages of N5,000.000.00 (Five Million Naira) at pages 158-159 was perverse and not backed by evidence and that Exhibit “D3” was not appeased or challenged and the finding that the rate of 21% interest was not challenged and Respondent’s witness not cross-examined were also perverse.
Applicant submitted that the onus of proving the 21% interest rates as at 2008 was on the Respondent which must be proved beyond mere assertion, based on the principle of “he who asserts must prove” he relied on IZEHI PROCUREMENT LTD & 2 ORS v. RICELAND INTERNATIONAL LTD & ANOR [2012] 16 NWLR (Pt. 1325) 200 at 219 Paras C-F.
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Furthermore, in view of the consent judgment Exhibit “D4” of 6th March, 2009 the money sought to be subject of 21% interest rate as at 2008 has been shared subsequently by parties entitled to same and neither parties to the said consent judgment have complained of the sharing ratio.
Respondent submitted that though there was no documentary evidence from any of the parties to show that any payment was made by the Appellant from Respondent’s account in October, 2008, there was unchallenged, uncontradicted and uncontroverted evidence before the Court was that the Respondent made payment from the account as staff salary for the month of October, 2008 he referred to the Claimant’s Witness Statement on Oath at page 63 of the record. He cited P.T.F. v. I.F.M.S. LTD [2002] 16 NWLR (Pt. 794) 586 CA; APROFIM ENGINEERING CONSTRUCTION. LTD v. SIDON LTD. [2006] 13 NWLR (Pt. 1996) 73 CA to the effect that when evidence is led by a party, and there is no contrary evidence from the other party, such evidence is deemed to be true and accepted.
Respondent once again submitted in response to the Appellant that there was no in-house dispute in the
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Respondent’s company which affected the operation and running of the Respondent’s account with the Appellant. He finally submitted that contrary to the Appellant’s submission the judgment of the FederalHigh Court did not share the money of the Respondent in care of the Appellant and that parties in the suit had since complied with the judgment of the Court in the way that best suited them.
He then urged the Court to resolve the issue in favour of the Respondent.
RESOLUTION
This issue in the light of the due resolution touches on the relevance and documentary evidence before the Court.
The Appellant/Defendant tendered Exhibit P1-PIII and linked the Exhibit to his evidence both in chief and cross-examination. While Respondent/Claimant tendered Exhibit D1 to D5 in proof its case and testified.
The claimant had in Paragraph 5 of its reply to statement of Defence maintained that the Defendant having effected changes in signatories; that payment was made by the bank with respect to salary paid and that such letter of change of signatories does not amount to an in-house dispute.
The Defendant in its evidence-in-chief did
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not disprove the averment nor cross-examination. In OMOREGBE v. LAWANI (1980) 3-4 sc 70, instead it relied on a letter from an extraneous source on an in-house dispute and did not lay it before the Court, the lower Court was correct in its evaluation of evidence at trial when she held at page 157 thus:
“The Court must also note that the Defendant’s witness said it received a letter from some directors of the Claimant but this letter was never tendered by the Defendant. The interpleader application Suit no: FHC/L/CS/5391/08 was in fact filed in December 2008 after Exhibits “P1” and “P2″ had already been dishonoured….”
In EGHAREVBA v. OSAGIE (2009) 18 NWLR (Pt. 1173) 299 SC, the Apex Court held that:
“It is trite law that where there is oral as well as documentary evidence; the latter should be used as a hanger from which to assess the oral evidence. See FASHANU v. ADEKOYA (1974) ANLR 32 at 37-98… This is because, documentary evidence is said to be more reliable than oral evidence and it is used as hanger to test the credibility of oral evidence. See EZEMBI v. IBENEME & ANOR (2004) 14 NWLR (Pt. 894) 617…”
Furthermore, OGBUAGU,
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JSC, held that:
“It is now fully settled that documentary evidence, is the best evidence. It is the best proof of the contents of such document and no oral evidence, will be allowed to discredit or contradict the contents thereof except where fraud is pleaded.”
None of the documents tendered were objected by either sides. Therefore, the narrow interpretation is whether in the light of claims and evidence the Appellant fulfilled its contractual obligation under its banking relationship and whether it had a justification for its action.
Within this narrow scope, there is no speculation; it was ‘best evidenced’ by the documents properly evaluated by the lower Court.
The Respondent had alleged that unlawful deductions were made and tendered evidence in support, the burden shifts to the Appellant to prove that they were charges lawfully accruing to the bank and the rates/parameters of such deductions. See Sections 132 and 136 of the Evidence Act, 2011.
It is the duty of the Appellant to show that it is merely deductions and charges or costs in the course of normal banking business and that what was deducted qualified as such. The
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Court can take judicial notice of bank charges but not the rate, this is an in-house regulation imposed by Central Bank and it is the duty of the bank to prove that it is a legal charge due to them. See GBADAMOSI v. ALETE [1993] 2 NWLR (Pt. 273) 402. In ADEGOKE v. ADIBI & ANOR (1992) 5 NWLR (Pt. 242) 410, the Supreme Court, per NNEMEKA-AGU, JSC, held:
“In Civil cases while the general burden of proof in the sense of establishing his cases lies on the plaintiff, such a burden is not as static as in Criminal cases. Not only will there be instances in which on the state of the pleading the burden of proof lies on the defendant but also as the case progresses, it may become the duty of defendant to call evidence in proof for which may arise in the case.”
See: JIAZA v. BAMGBOSE [1991] 7 NWLR (Pt. 610) 182.
On the whole, the lower Court correctly acted positively on the unchallenged evidence before it and correctly evaluated evidence before it. I have no reason to tamper with its conclusion. See OLABANJI & ANOR v. OMOKEWU [1992] NWLR (Pt. 250) 671; WOLUCHEM & ORS v. GUDI & ORS [1984] 4 SC 319; FRANK EBBO v. OGODO & ANOR (1984)
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4 SC 84 at 103.
I resolve issue 3 in favour of the Respondent.
On the whole, this appeal is unmeritorious and hereby dismissed. The judgment of K. A. JOSE J, of the High Court of Lagos State delivered on 2nd May, 2012 is hereby affirmed. Costs of N50,000.00 awarded in favour of the Respondent.
Other Citations: (2016)LCN/8928(CA)
