Cletus I. Ilomuanya V. Lobi Bank of Nigeria Limited (1997)
LawGlobal-Hub Lead Judgment Report
MUSDAPHER, J.C.A. In the High Court of Lagos State of Nigeria holden at Ikeja and in Suit No. ID/560/88, the respondent herein took out a specially endorsed writ accompanied with a Statement of claim against the appellant as the defendant in the following terms:-
“The plaintiffs claim against the defendant is for the sum of N95,927.02 being overdraft granted to the defendant by the plaintiff at defendant’s request; and also interest at 17% per annum from 24th of July, 1987 till judgment, and at 6% per annum with effect from the date of judgment until the whole debt is fully liquidated.”
The appellant entered appearance after which the respondents filed summons for judgment in accordance with the procedure set out under Order 10 of the High Court of Lagos State Civil Procedure Rules 1972. The appellant made an affidavit purportedly showing cause why summary judgment should not be entered. The summons for judgment filed on the 7th day of June 1988 was moved and argued. In the Ruling delivered by the trial Judge on the Summons for judgment, the learned trial Judge upheld the motion and held amongst other issues thus:
“The defendant is not saying that he has paid the debt. The amount being claimed is a debit in his account though it may have gotten there through the influence of someone else. He is not putting up any legal defense which even if the defendant’s allegations are true would preclude the plaintiff from succeeding in his claim.
In the event, the application to sign a final judgment from the amount claimed succeeds.
There will be judgment for the plaintiff for the sum of N95,972.02 plus interest at the rate of 17% per annum from 24th July, 1987 till this day and thereafter at the rate of 4% per annum until the judgment debt is finally liquidated”.
Dissatisfied with the judgment, the appellant filed a Notice of Appeal containing the following grounds of appeal:-
(1) That the learned trial judge erred in law in giving judgment for the plaintiff when:-
(i) The application for judgment did not specify the amount of judgment demanded.
(ii) The application was not verified on oath as to:-
(a) cause of action
(b) the amount claimed as required by Order 10 rule 1(a) of the High Court of Lagos State (Civil Procedure) Rules, 1972.
(2) That the learned trial Judge erred in law entering the judgment for the plaintiff under Order 10 rule 1(a) of the High Court of Lagos State (Civil Procedure) Rules 1972 without taking into account the defendant’s affidavit dated 13/5/1988 setting out in full the nature of defence to the action.”
The aforementioned Notice of Appeal was filed on the 26/7/1988. Additional grounds of appeal were also filed on 1/8/1988. The additional grounds read:-
“1. That the learned trial judge erred in law in failing to give the defendant a chance to join the said Godfrey Okoro Manager of the plaintiff’s Bank who was accused by the defendant as having created the loan and received it for his own purpose as provided under Order 13 Rule 22 of the High Court of Lagos (Civil Procedure) Rules 1972 and thereby failed to give the defendant a fair hearing on the allegations raised in his affidavit contrary to Section 33 of the Constitution of the Federal Republic of Nigeria.
- The learned trial judge erred in law in failing to consider the effect of:-
(1) The irregular payment of 2 cheques in one day amounting to N76,000.00k by the said Manager, Godfrey Okoro in excess of N50,000.00k lending power of a branch manager as contained in the counter-affidavit.
(2) The irregular payment of the sums of N8,000.00k and N2,000.00k separately by the said manager, Mr. Godfrey Okoro, to the accounts of the defendant without his knowledge and authority as contained in the counter-affidavit as tending to establish the defendant’s allegation that the money in question was created and received by the said manager, Godfrey Okoro for his own benefit in fraud of his employers.
(3) The learned trial judge erred in law in failing to call for oral evidence to resolve the allegations and counter allegations contained in the two opposing affidavits before the court.
(4) The learned trial judge erred in law in failing to consider that the affidavit, evidence of Godfrey Okoro, a person accused by the defendant of taking the money in question, is a statement by a person interested and particularly paragraph 10 of the counter-affidavit, and therefore inadmissible under section 90(3), of the Evidence Law”.
In compliance with the provisions of Order 6 of the Court of Appeal Rules, briefs of argument were filed and exchanged and at the hearing of the appeal in this Court both learned counsel proffered oral submissions. Before dealing with the grounds of appeal and the issues raised for the determination of the appeal, it is expedient to set out the background facts.
There is no dispute that there existed a bank and customer relationship between the respondent and the appellant. The appellant maintained Account No.020352 with the respondent. On the 17th day of June, 1987, three cheques for the sums of N36,000.00k, N40,000.00k and N20,000.00k were issued against the account. There is no dispute that the appellant issued the cheques which were duly cashed and money was taken out. On the same date a cheque in the sum of N130,000.00k was paid into the account – as it turned out, that cheque was not honoured. The respondent alleged that the amount of N96,000.00k covered by those cheques was an overdraft granted to the appellant at his request while the cheque of N130,000.00 paid into the account was a guarantee for the overdraft. It is not disputed that cheque of N130,000.00k paid into the appellant’s account was not honoured and also that the overdraft was not paid. When the respondent demanded the payment of the overdraft and interest, the appellant in his letter admitted the claim and prayed for time within which to pay. It was when he failed to pay that the respondent took this action.
In his affidavit in opposition to the application by the respondent to enter final judgment under the procedure under Order 10 of the Lagos State High Court (Civil Procedure Rules 1972, the appellant did not deny the transaction but alleged it was Mr. Okoro, the acting Manager of the respondent, who used his Account to take the money out for his own use. He also alleged that the letter of admission was drafted by Mr. Okoro, he merely signed it. As mentioned above the learned trial Judge held that even if it is true that Mr. Okoro influenced the transaction the respondent is entitled to judgment against the appellant who knowingly allowed his account to be fraudulently used.
Now the learned counsel has formulated three issues for the determination of the appeal. The issues are:-
“1. Is Godfrey Okoro a person who can swear positively to the facts verifying the cause of action and the amount claimed and stating that in his belief there is no defense to the action as required by Order 10 rule 1 (a)?
- Has the appellant put up a defence which is a triable issue to the plaintiffs claim on the strength of his affidavit?
- Is the judge competent at that stage to determine the issues raised in the conflicting affidavits of Godfrey Okoro and Cletus Ilomuanya without calling for oral evidence?”
On the first issue the learned counsel for the appellant contended that Mr. Godfrey Okoro was not qualified “to positively swear to the facts verifying the cause of action and the amount claimed and stating in his belief there was no defense to the action” as he was a person interested at the time he swore the affidavit. He was on suspension for granting this loan irregularly. Mr. Okoro was accused by the appellant in his affidavit that –
“(1) He unlawfully used the appellant’s account to withdraw N96,000.00 for his own benefit.
(2) He drafted t1ie letter written by the appellant admitting the loan.
(3) He paid in the sum of N10,000.00k to the appellant’s account in order to reduce the loan.
Accordingly, Mr. Okoro is a person interested in the manner and therefore not qualified to swear to the affidavit. Vide section 90 (3) of the Evidence Act. Learned counsel also referred to the case Anyeabosi V. R.T. Briscoe Nigeria Ltd. (1987) 3 NWLR (Pt. 59) at 84.
For the respondent, it argued firstly that the issue and the relevance of Section 90(3) is a fresh point which did not arise for adjudication in the Court below and no leave has been sought and granted to raise the issue on appeal. Secondly, it is irrelevant to the facts of this case or the procedure under Order 10 of the Lagos State High Court (Civil Procedure) Rules. The case of Anyeabosi cited is not applicable as it was dealing with the admissibility of documents and the document was in any event admitted notwithstanding the fact that it was an employee of the plaintiffs who prepared and tendered it.
I respectfully agree with the views of the learned counsel for the respondent. It is now settled law that an appellant will not be allowed to raise on appeal a question which was not raised or considered by the Court below. But where the question involves substantial points of law substantive or procedural and it is plain that no further evidence would be necessary, the court may allow the question to be raised and the point of law taken in order to prevent an obvious miscarriage of justice. See Akpene v. Barclays Bank of Nigeria (1977) 1 S.C. 47, Usman v. Kareem (1995) 2 NWLR (Pt. 379) 537. Where a new issue is raised on appeal without leave of the Appellate Court such issue may be struck out as incompetent. See Egbunike v. A.C.B. Ltd (1995) 2 NWLR (Pt. 375) 34. It is now firmly established that no point substantial or otherwise that has not been taken and adjudicated upon by the trial Court will be allowed to be raised for the first time on appeal except special circumstances are shown.
I am also in agreement with the learned counsel for the respondent, that under the provisions of Order 10 Rule 1(a) of the Lagos State Civil Procedure Rules Section 90(3) of the Evidence Act does not apply. There is nothing in the rules of the Lagos State High Court suggesting the quality of a deponent to the verifying affidavit. What is required is an affidavit which may be made by any person who can swear positively to the facts and stating his belief that there is no defence to the action. There is no other requirement. The deponent may be a party or some other person. See FSB Int. Bank Ltd v. Imano (Nig) Ltd. (1995) 2 NWLR (Pt. 377) 295.
I accordingly reject the appellant’s contention in the first issue.
The second issue can conveniently be dealt with the third issue. The points raised question the decision of the learned trial Judge that the appellant did not put up any triable argument sufficient enough to allow him defend the action. It is further contended that there is conflict in the affidavit of Mr. Okoro verifying the claim and that of the appellant resisting the claim. It is submitted that where conflict arises in the two competing affidavits, the appellant ought to have been allowed to defend the action and that the conflicts be resolved by oral evidence. For the appellant it is argued that he raised these triable issues in his affidavit-
(a) He never applied for the overdraft and Mr. Okoro said he applied for the loan orally.
(b) That the sum of N96,000.00k covered by the three cheques were all issued in same day so as to enable Mr. Okoro as the Acting Manager, the authority to allow the cheques as his limit was only N50,000.00k. Therefore it was a ruse to cheat the bank.
(c) That due to the side tracking the banks regulations on this loan, the respondent bank suspended Mr. Okoro thus giving clear indication that the respondents were not happy with the conduct of Mr. Okoro, and
(d) That Mr. Okoro paid into the appellant’s N8,000.00k and N2,500.00 in October, 1987, this amounted to an admission on the part of Mr. Okoro. It is submitted that these pieces of evidence, would entitle the appellant to defend the action within Order 10 Rule 3. Learned counsel relied upon the case of Nishizawa Ltd v. Jethwani (1984) 12 SC 234.
For the respondent it is contended, that an application for a loan or overdraft can be made orally or where a customer raises a cheque in excess of the actual balance in his Account, once the bank honours the cheque, the customer becomes a borrower. All the other points do not really derogate from this fact, that the appellant had issued cheques against his Account which were honoured by the bank. Whatever private arrangement the appellant had with Mr. Okoro does not affect the liability of the appellant to the bank. He knowingly agreed to the transaction. He allowed his account to be used by signing cheques at his peril.
Now the procedure under order 10 of the Civil Procedure Rules of Lagos State High Court is designed to enable a plaintiff to obtain summary judgment without trial where the case is patently clear unassailable and the defence put forward by the defendant does in law avail the defendant. See FSB International Case (supra). See also Iron Products Ltd. v. S.A.C. Ltd. (1992) 4 NWLR (Pt.238) 734.
The purpose of Summary Judgment under Order 10 procedure is for the expeditious disposal of claims which are virtually incontestable in the sense that the defendant clearly has no valid defence in such a situation the plaintiff is entitled to an early judgment without having to go to a full trial. The defendant must show if he wants to be allowed to defend the action, a valid defence and not a sham defence. Whatever be the facts the defendant puts forward must amount to a legal defence. See Nishizawa case (supra), Macaulay v. Nal Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283. The affidavit opposing the application for judgment must show a legal defence, the fact that some other party may be liable is not enough. In the instant case, there is no contest that it was the appellant who issued the cheques against his account, it is not disputable that he knew of the consequences of issuing the cheques and writing the letter admitting the claim of the respondent. As between the appellant and the respondent, the facts are clearly unambiguous that the appellant took the loan. If he has any claim against Mr. Okoro as to what happened to the money after be cashed the cheques, it is a matter clearly between the appellant and Mr. Okoro. See Peter Tiwell (MG) Ltd v. Inland Bank (Nig) Ltd. (1997) 3 NWLR (Pt 494) 408. I am of the firm view that as between the appellant and the respondent, the appellant’s affidavit did not disclose any triable issue. It is now settled law that if a customer to a bank draws a cheque for a sum in excess of the amount standing to the credit of his account, it is really a request for a loan and if the cheque is honoured the legal effect is that the customer has borrowed the money. See A.C.B. v. Egbunike (1988) 4 NWLR (Pt. 88) 350, See also Desalu v. Akapo (1967) 1 All NLR 201. The appellant did not claim to have repaid the money and did not show any reason why the respondent should be precluded from getting the summary judgment
The final point is the question of the alleged conflict in the affidavits. From the undisputed facts, I am of the view that there are no material conflicts in the two affidavits. The fundamental issue which is not disputed is the overdraft which had remained unpaid up to the time of filing the action. The position of the law is that generally where affidavit evidence is in conflict, a trial Judge should call for oral evidence to reconcile the conflict, but where there is documentary evidence before him which will assist him to resolve the conflict; there is no need to call the oral evidence. In the instant case, there is a letter signed by the appellant admitting the respondent’s claim. The fact that the letter was drafted by Mr. Okoro is of no moment. See A.G. of Enugu State v. Avop Plc. (1995) 6 NWLR (Pt. 399) 90. Bob-Manuelv. Briggs (1995) 7 NWLR (Pt. 409) 537. The facts of this case do not call for any resolution of any conflict in the affidavit evidence. All the points raised are not substantial and they do not affect the facts deposed to by the respondent. They deal with matter entirely between the appellant and Mr. Okoro. Thus all issues raised in this appeal are decidedly resolved against the appellant. This appeal is bound to fail and I hereby dismiss it. I affirm the judgment of the Court below. The respondent is entitled to the costs of this appeal which I assess at N3,000.00k.
Other Citations: (1997)LCN/0297(CA)
