African Continental Bank Limited V. Alexander Ilukwe Egbunike & Anor (1988)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A. 

 The appellants were the plaintiffs in the lower Court. They had claimed from the defendants jointly and severally as follows:-
“(1) The sum of N800,312.28 (Eight hundred thousand, three hundred and twelve naira, twenty eight kobo) balance of overdraft with compound interest at the rate of 10% per annum as at close of business on the 26th November, 1979.
(ii) Compound interest at the rate of 10% per annum with monthly interests until the debt is fully repaid or judgment is obtained from 27th November, 1979.”

Pleadings were ordered, filed and exchanged. The case was tried by Obayi, J. at the Abakaliki High Court of Anambra State. The plaintiffs called three witnesses in support of their case. The defendants elected not to call evidence. The lower Court on 17/4/85, after hearing counsel’s addresses, delivered its judgment. It dismissed plaintiff’s case.

The plaintiffs were dissatisfied with the order dismissing their case. They have come before us on appeal. There was only one original ground of appeal which is the omnibus ground that decision of the court below is against the weight of evidence. The appellants later sought and were granted leave to file four additional grounds of appeal. The additional grounds without their particulars read thus:
“(2) That the court below erred in law in not entering judgment for the plaintiff on the state of pleadings and evidence of the plaintiffs’ witnesses.
(3) That the court below misdirected itself on facts and law when it held that defendants denied all that the plaintiffs filed in its (sic) statement of claim when the reverse was the case as to the material averments.
(4) The court below misdirected itself on fact and law by holding that the plaintiff should prove its case beyond reasonable doubt.
(5) The court below erred in law in requiring the plaintiff to discharge the burden of proof when the pleadings did not raise any issue to warrant the plaintiff to do so.”

In the appellants’ brief of argument filed the issues for determination in this appeal are stated to be:
“(i) Whether the court below erred in law in not entering judgment for the plaintiff/appellant on the state of pleadings and evidence of the plaintiffs witnesses.
(ii) Whether the court below misdirected itself on facts and law when it held that defendants denied almost all that the plaintiff filed in the statement of claim when the reverse was the case as to the material averments thus resulting in miscarriage of justice.
(iii) Whether the court below misdirected itself by holding that the plaintiff should prove its case (including admitted facts which require no proof) beyond reasonable doubt.
(iv) whether the court below erred in law in requiring the plaintiff to discharge the burden of proof when the pleadings did not raise any issue to warrant the plaintiff to do so.”

The respondents filed their brief on 31/7/86 and the appellants filed a reply brief on 10/10/86.

It would appear that the grounds of appeal and the issues for determination tied to them revolve around the pleadings of parties and the burden of proof in the light of the state of pleadings upon which the case was tried and the standard of proof which the pleadings call into play. These grounds of appeal could be conveniently taken together.

I start a consideration of issues by examining closely the pleadings of parties upon which the case was tried. The plaintiffs in paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of their amended statement of claim filed on 15/4/83 averred thus:
“3. On or about the 17th February, 1978, the defendants opened a current account with the plaintiff’s Abakaliki Branch and thereafter operated the same account by making payments and withdrawals. The plaintiff at the trial of this suit will found on a copy of resolution dated 16/2/78 appointing the 1st defendant the sale signatory to their account.
4. The said account was at all material times opened, maintained and operated in the individual names of the 1st and 2nd defendants.
5. On or about the 8th day of March, 1978, the defendants paid into their account No. 9180 two Co-operative Bank of Eastern Nigeria Limited Aba branch cheque Nos. A37588 and A373589 for the sum of N330,000.00 and N348,000.00 respectively, which said cheques were issued by the defendants against their account at the said Bank at Aba. The defendants’ account was accordingly credited with the total sum of N678,000.00. Thereafter the plaintiff’s functionaries at Abakaliki made no effort to clear the said cheques. There was no record showing how and when the said cheques were dispatched to Aba for clearing neither was there any trace of the schedule advice of cheques purchased in the file for cheques outwards schedule for the plaintiff’s Aba main branch. There has been no trace of the said cheques. The tellers with which the said cheques were paid in will be founded upon at the trial.
6. Immediately after paying the said cheques on the 8th March, 1978, the defendants asked to be allowed to withdraw the sum of N661,000.00 from the said account. The defendants did so fully aware that their account at the Co-operative Bank of Eastern Nigeria was in “RED.” The plaintiff’s Abakaliki Branch Manager, Michael Egbunike (the 1st defendant’s brother) promptly granted the defendant’s request and allowed them to withdraw the said sum without bothering to have the effects of the said Aba cheques cleared. The plaintiff will at the trial of this suit found on the A.C.B. Limited cheque No. 022736 dated 8th March, I978 with which the said sum was withdrawn.
7. On or about the 16th day of March, 1978, the defendants lodged in their account two bank drafts Nos. D4128317 for N331,000.00 and D128318 for N330,000.00 (totalling N661,000.00) issued on Martin Street, Lagos Branch of the plaintiff. On the same day the defendants insisted on withdrawing the total amount even though to their knowledge they had no funds at their Co-operative Bank of Eastern Nigeria Limited Aba account to cover their two earlier cheques lodged into their account No. 9180 on 8th March, 1978. The plaintiff’s Manager, Mr. Michael Egbunike once more allowed the defendants to withdraw the said sum on borrowed A.C.B. Limited Cheque No. 026538 dated 16th March, 1978. The said cheques will be founded on at the trial of this suit.
8. On or about the 11th October, 1978, the defendant’s account No. 9180 was debited with the two Aba cheques purchased for N330,000.00 and N348,000.00 which were paid into the said account on 8th March, 1978 and this resulted in a debit of over N670,000.00 on the account aforesaid. The decision by the plaintiff to debit the said account was based on the findings of their Chief Inspector as regards the said account and the transactions pleaded hereof. A debit voucher dated 10th October, 1978 was promptly sent to the defendants through their Aba address. Moreover, a letter was addressed to the defendants informing them of the cheques and the management decision to debit their account. The plaintiff will at the trial found on the debit voucher as well as the said letter and the defendants are hereby given notice to produce the same.
9. The defendants’ account thereafter became overdrawn in the sum of N711,848.03 (Seven hundred and eleven thousand, eight hundred and forty-eight naira, three kobo) with compound interest at the rate of ten per cent per annum with monthly rests.
10. As at 26th November, 1979, the debit balance of the said overdraft with compound interest stood at N800,312.28 (Eight hundred thousand, three hundred and twelve naira twenty-eight kobo). The said debit balance is reflected in the defendants’ statement of account which will be founded upon at the trial of this suit. The defendants were supplied their own copy of the statement of account regularly.
11. On or about the 4th day of November, 1979, the 1st defendant at Abakaliki submitted to the plaintiff photocopy of a Certificate of incorporation of Metropolitan Paints and Chemical Company as a Limited Liability Company. The said document indicated that the Company was incorporated on 24th July, 1979. The 1st defendant asked the plaintiff to transfer the debt to the incorporated company.
12. In a letter dated the 6th day of November, 1979, referred to as 1/2/79 signed by the 1st defendant as the Managing Director and addressed to the plaintiff, in reply to the plaintiff’s demand letter, the 1st defendant argued that the debt was to be repaid as from the 30th day of June, 1980 and assured the plaintiff that the defendants will honour their obligations. This letter will be founded upon at the trial of this suit. The defendants are hereby given notice to produce at the trial of this suit copy of the plaintiff’s demand letter to which the defendants were replying. The plaintiff will at the trial found on a letter from the Ag. Chief Inspector A.C.B. Ltd on the subject matter dated 3/10/78.
13. The plaintiff did not at any time material to this claim agree with either the defendants or the incorporated company for repayment of the overdrawn account to commence as from the 30th day of June, 1980, or at all. This is more so because the incorporated company has no account with the plaintiff.”

From the averments in the plaintiffs’ amended statement of claim above, it would seem that the case being made by the plaintiffs was simple and straight forward. It comes down to this: The defendants lodged two cheques totalling N678,000.00 into their account. The same day the cheques were lodged, the defendants sought for and were granted an overdraft of N661,000.00 against the fate of the two cheques. However, for some reasons the two cheques paid by the defendants were never sent to the paying bank for collection. The cheques could not be traced. In other words, the plaintiffs did not have value on the two cheques for N678,000.00 while the defendants had been allowed to withdraw N661,000.00. On the 16/3/78, the defendants paid in two drafts totalling N661,000.00. On the same date they withdrew the whole amount through the instrumentality of 1st defendant’s brother who was plaintiff’s Abakaliki branch Manager. A debit balance of N800,312.28 has now resulted to the account of defendants when compound interest of 10% per annum was added. Statements of account were sent to the defendants. The defendants tried to prevail on the plaintiff that a newly incorporated company would take over the existing account of the defendants and its debts; and also that the debt would be paid instalmentally with effect from 30th June, 1980.The plaintiff did not agree with these proposals. Now, how did the defendants meet the case so clearly made by the plaintiffs? In paragraphs 2, 6, 7, 9, 11 and 12 of the amended statement of defence the defendants averred:
“2. The defendants admit paragraphs 1, 3, 9 and 10 of the amended statement of claim.
6. Save and except that the defendants paid in two cheques totaling N678,000.00 into the plaintiff company’s branch at Abakaliki on the 8th of March, 1978, the defendants make no further admission with regard to paragraph 5 of the amended statement of claim and will put the plaintiff to the strictest proof of the allegations therein contained.
7. In further answer to paragraph 5 of the amended statement of claim the defendants state that their account could not have been credited with the sum of N678,000.00 without the Co-operative Bank of Eastern Nigeria Aba branch cheques being cleared as required by normal banking regulations.
9. In further answer to paragraph 6 of the amended statement of claim the defendants state that the bank draft for N661,000.00 given to the defendants was a different transaction altogether. The draft was as a result of an overdraft facility enjoyed on a continuing basis by Metropolitan Paints and Chemical Company Limited from the plaintiff company. The defendants also state that this was not the first time the Metropolitan Paints and Chemical Co. Ltd enjoyed such facility from the plaintiff company.
11. Save and except that the account of the defendants was debited with the sum of N678,000.00, the defendants deny that their own cheques were ever sent to Aba or were returned unpaid to the plaintiff company or were eventually sent to the defendants and will put the plaintiff to very strict proof of the allegations contained in paragraph 8 of the amended statement of claim.
12. The defendants deny paragraph 10 of the amended statement of claim and will put the plaintiff to strict proof of the allegations contained therein.”

A few comments must be made about the above averments in the amended statement of defence. In paragraph 2 of the amended statement of defence, the defendants expressly admitted the averment in paragraph 10 of the amended statement of claim. But in paragraph 12 of the same amended statement of defence the same averment in paragraph 10 of the amended statement of claim was denied.
In paragraph 7 of their defence the defendants were in fact putting across an argument that in accordance with banking regulations, the plaintiff could not have credited their (defendant’s) account without first clearing the two cheques for N678,000.00 which they paid in.
Although the plaintiff pleaded in paragraph 5 of the amended statement of claim, that the two cheques for N330,000.00 and N348,000.00 were drawn on the defendants’ account with the Co-operative Bank of Eastern Nigeria Limited, Aba, the defendants did not aver that their account at the Aba Branch of Co-operative Bank of Eastern Nigeria was debited for the sum of N678,000.00 being the face value of the two cheques.
Indeed, the defendants in paragraph 11 of the defence admitted that the cheques were not sent to Aba, or returned unpaid to the plaintiff or eventually sent to the defendants.

Be it noted that it was the case of the plaintiffs that the two cheques could not be traced. In other words, they were lost and never presented for payment against the account of the defendants at Aba. Since the defendants admitted that it paid in the two cheques for N678,000.00 and since the defendants did not deny that they were allowed to withdraw N661,000.00 on the very day the two cheques for N330,000.00 and N348,000.00 were paid in; and since the defendants have admitted that the two cheques were never presented to their Co-operative Bank of Eastern Nigeria, Aba branch for payment, it seems to me that the material averments in the plaintiff’s pleading had all been admitted.
In paragraph 9 of the amended statement of claim, the plaintiff pleaded that the account of the defendant became overdrawn in the sum of N711,848.03 and that this amount included compound interest at the rate of ten per cent. The defendants expressly admitted this in paragraph 2 of the amended statement of defence.
In Emegokwue v. Okadigbo (1973) 4 S.C. 113 the Supreme Court per Fatayi Williams J.S.C. (as he then was) said:
“‘It is trite law and we have repeated it on many occasions, that parties are bound by their pleadings and that any evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by the court. The reason for this rigid rule of pleading and evidence has been clearly stated by this Court in George & Ors. v. Dominion Flour Mills Ltd (1963) 1 All N.L.R. 71 at p.77 as follows:
“The fairness of a trial can be tested by the maxim audi alteram partem. Either party must be given an opportunity of being heard, but a party cannot be expected to prepare for the unknown; and the aim of pleadings is to give notice of the case to be met; which enables either party to prepare his evidence and arguments upon the issue raised by the pleadings, and saves either side from being taken by surprise. Incidentally, it makes for economy. The plaintiff will, and indeed must confine his evidence to those issues, but the cardinal point is the avoidance of surprise.”
Looking closely at the pleadings filed by the defendants, it is clear that they have not complied with the applicable rules of court governing pleadings. The pleadings of the defendants are evasive and in some respects ambivalent or equivocal.

Order 33 Rules 9, 10 and 11 of the Anambra State High Court Rules provide:
“9. The defendant’s pleading or defence shall deny all such material allegations in the petition as the defendant intends to deny at the hearing. Every allegation of fact, if not denied specifically or by necessary implication or stated to be not admitted shall be taken as established at the hearing.
10. It shall not be sufficient to deny generally the facts alleged by the statement of claim, but the defendant must deal specifically therewith, either admitting or denying the truth of each allegation of fact seriatim, as the truth or falsehood of each is within knowledge or (as the case may be) stating that he does not know whether such allegation or allegations is or arc true or otherwise.
11. When a party denies an allegation of fact, he must not do so evasively, but answer the point of substance. And when a matter is alleged with divers circumstances, it shall not be sufficient to deny it as alleged with those circumstances but as a fair and substantial answer must be given.”
And in Lewis & Peat v. Akhimien (1976) 7 S.C. 157, the Supreme Court said at Pp.163-164:
“When as a result of exchange of pleadings by parties to a case, a material fact is affirmed by one of the parties but denied by the other, the question thus raised between the parties is an ‘issue of fact’. We must observe, however, that in order to raise an issue of fact in these circumstances, there must be a proper traverse; and a traverse must be made either by a denial or non-admission either expressly or by necessary implication. So that if a defendant refuses to admit a particular allegation in the statement of claim, he must state so specifically; and he does not do this satisfactorily by pleading thus “defendant is not in a position to admit or deny (the particular allegation in the statement of claim) and will at the trial put the plaintiff to proof.” As was held in Harris v. Gamble (1878) 7 Ch.D. 877, a plea that “defendant puts plaintiff to proof” amounts to insufficient denial; equally a plea that the “defendant does not admit the correctness” (of a particular allegation in the statement of claim) is also an insufficient denial See Rutler v. Tregent (1879) 12 Ch.D. 758. We are, of course not unmindful of the first paragraph of the statement of defence. Nowadays almost every statement of defence contains such a general denial (See Warmer v. Sampson (1959) 1 Q.B. 287 at 310 – 311. However, in respect of essential and material allegations such a general denial ought not to be adopted; essential allegations should be specifically traversed. (See Wallersteiner v. Moir (1974) 1 W.L.R. 991 at 1002 per Lord Denning M.R., also Bullen & Leake & Jacobs, Precedent of pleadings 12th Edition P.83.” In the instant case, the defendants in one breadth admitted a material part of the pleading while denying the same in another. Further the defendants admitted their account was in the debit to the tune of N711,848.03 while they also sought to argue that their accounts would not have been credited if the cheques they paid in had not been cleared. Still more surprisingly, the defendants averred that the two cheques were never sent to their Bank at Aba for clearing.
It seems to me that upon a fair and true construction of the amended statement of defence, the conclusion to be arrived at is that the defendants had admitted the plaintiff’s claim.
In paragraphs 4, 13, 15 and 17 of the amended statement of defence. The defendants averred:
“4. The defendants state in answer to paragraph 4 of the amended statement of claim that the said paragraph is true as regards events up to the 25th of July when the assets and liabilities of the defendants were transferred to the Metropolitan Paints and Chemical Company Limited.
13. By a letter dated the 25th of July, 1979, the plaintiff company was advised that the Metropolitan Paints and Chemical Company Ltd had taken over the assets and liabilities of the defendants. Paragraph 11 of the amended statement of claim in so far as it conflicts with the foregoing statement is denied.
15. The defendants deny paragraph 13 of the amended statement of claim and will put the plaintiff to strict proof of the allegations therein contained. In further reply thereto, the defendants state that at no time did the plaintiff indicate that it was not ready and willing to receive payments from the Metropolitan Paints and Chemical Company Limited nor did it require the said company to open a new account with the said plaintiff’s company but had by conduct represented to the defendants that it was willing to treat with the company.
17. The defendants deny paragraphs 15 and 16 of the amended statement of claim. In answer thereto the defendants state that by a letter dated the 19th of March, 1980, the Metropolitan Paints and Chemical Coy. Ltd. requested the plaintiff company to review the retirement date of the debt. The defendants will rely on this letter.”
There can be no doubt that the case being made by the defendants is that they had sought from the plaintiffs and that the plaintiffs had agreed an understanding that the debts previously owned by them in the Account No. 9180 be taken over by Metropolitan Paints and Chemical Company Limited. In other words they pleaded ‘confession and avoidance’. In essence, they said that the debts had become the liability of the incorporated company. They also pleaded that they wrote to the plaintiff that the date for the payment of the debt be reviewed.
In his judgment at Pp.44 and 45 of record, the trial judge said:
“The defendants filed their statements of defence which contained nineteen paragraphs. In their statement of defence, the defendants denied almost all that the plaintiff filed in his statement of claim. In fact the defendants’ in paragraph one of their statement of defence said:
“Save as is herein expressly, admitted, the defendants deny each and every allegation of facts contained in the statement of claim appearing as if they were set out seriatim and denied specifically and will plead and rely on all legal and equitable defences which may be open to the defendants and will specifically plead and rely on:
(a) Laches
(b) Acquiescence; and
(c) Estoppel by conduct.”
“The defendants however admitted the facts as contained in paragraphs 1, 3, 9 and 10 of the amended statement of claim.”

I think that the trial judge seriously misdirected himself by accepting that the defendants denied almost all the averments in the amended statement of claim.
On the contrary, the correct view would be that the defendants admitted all the material averments.
As stated in Lewis & Peat v. Akhimien (supra), the material averments in a pleading must be specifically denied to raise an issue. This cannot be done by a mere general traverse clause in a statement of defence.

Again in his judgment at page 56 of the record, the trial Judge said:
“It is well settled law that fraud in both civil and criminal cases has to be specifically pleaded and proved and general allegation however strong are (sic) insufficient to amount to an averment of fraud of which any court ought to take notice. See the case of Wallington v. Mutual Society (1880) 5 Appeal cases 697. Also see Johnson v. King A.C. 817 P.C. In the above quoted cases, it was shown that no evidence of fraud was led but in the present case now before me, I hold that evidence somehow has been led but was such evidence led sufficient for me to hold that the plaintiff has proved his case beyond reasonable doubts. Such is what one should advert one’s mind to in this present case. This calls into question Section 137(1) Evidence Law Eastern Nigeria 1963 applicable to Anambra State. This section of the law says:
“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
“Section 137(2) says”
“The burden of proving that any person has been guilty of a crime or wrongful act is subject to Section 140, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.”
“Such is our Evidence Law. Now taking into account the present case on hand, paragraphs 5, 6 and 7 of the pleadings as well as the evidence of P.Ws. 1, 2 and 3 show that the defendants had defrauded the plaintiff/bank; if not for any other criminal offence; that of obtaining by false pretence contrary to Section 419 of the Criminal Code, cheating under Section 412 of our criminal code, unlawful grant of advance contrary to Section 11A(1)(b) of Decree No 45 of 1972 and may be conspiracy to commit felony or stealing are all implied in those paragraphs 5, 6 and 7 of the plaintiff’s pleadings. Such being the case, it follows as per Section 137(1) Evidence Law that the plaintiff has to prove his case not only on the balance of probability but beyond reasonable doubts. Such offences as listed above can properly be said to be the basis of the plaintiff’s action. Since the defendants denied the allegations, the commission of crimes by the defendants was directly in issue and so Section 137(1) comes into play. The issue of crime must arise on the pleadings for this section to operate.”
With profound respect to the trial Judge, I think he again misdirected himself in the above passage of his judgment reproduced above. In Nwabodo v. Onah & 5 Ors (1984) 1 S.C. 1 at 40/41, the Supreme Court per. Bello, J.S.C. said:
“The issue of a crime must arise on the pleadings. The sub-section only applies where there is specific allegation of a crime so that its commission can properly be said to be a basis or foundation of the claim or defence as the case may be: Ikoku v. Obi (1962) 1 ALL N.L.R. Vol. 1 Part 1 194 at 199 and Jules v. Ajani (1980) 5 -7 S.C. 96 at 116.
However, where a plaintiff makes an allegation of a crime in his pleadings but nevertheless can succeed in his claim without proving the crime it cannot then be said that the alleged crime was a fact in issue or directly in issue: Nwankwere v. Adewunmi (1967) N.M.L.R. 45 at 48. Denning L.J. stated the rule aptly in Arab Bank v. Ross (1952) Q.B.D. 216 at 229 in these terms:
“Under the rules of pleading, as I have always understood them, a pleader who has pleaded more than he strictly needs to have done, can always disregard the unnecessary or surplus averments and rely simply on the more limited one.”

I do not see that the plaintiffs anywhere in paragraphs 5 to 7 of their amended statement of claim pleaded the commission of crime by the defendants. True, it is, that in paragraph 6, the plaintiffs pleaded that the defendants asked to be allowed to withdraw N661,000.00 from their account with full knowledge that their account at Aba upon which the two cheques for N678,000.00 were drawn was in the “RED” but this clearly is a case of surplus or excess pleading. The case made by the plaintiffs is that when the defendants paid in two cheques for N678,000.00, the defendants asked to be allowed to withdraw N661,000.00 immediately. At the time, they had not enough funds in their account to cover it apart from the two cheques paid in which were still to be cleared. The plaintiff bank allowed them to do so. Whether or not the defendants’ account at Aba was in the ‘RED’ would not alter the fact that the plaintiff through its manager (who happened to be a brother to 1st defendant) had granted the defendants an overdraft. As it happened, the two cheques paid in by defendants for N678,000.00 were never presented for payment against the account of the defendants as they were lost. They might have been stolen or deliberately destroyed. But this has nothing to do with the fact that the defendants were granted an overdraft.
Lord Chorley in his Law of Banking Sixth Edition at Page 216 writes:
“Should a loan be temporarily required by the customer he will usually make his offer to his banker to borrow the amount needed by the process of overdrawing, at any rate if it is not substantial. To write the offer out in full, the customer by overdrawing impliedly makes an offer to borrow from the banker a sum of money measured by the difference between the amount of his cheque and the amount standing to the credit of his account. The banker is free to reject this offer which he may simply do by dishonouring the cheque, though in some circumstances this might be bad business, or to accept it by simply paying the cheque. Thereupon the “superadded” contract arises by which the customer undertakes not only to repay in due course but to pay interest at the rate ruling at the time. The whole of such an overdraft transaction may thus take place – indeed it often does so without anything being said on either side and it then provides as good an example of an implied contract as one could hope to find.”
In Brooks & Co. v. Blackburn Bennet Society (1884) App. cases 857 at 864, the House of Lords in England per Lord Blackburn said:
“But they are under no obligation to honour cheques which exceed the amount of the balance or in other words to allow the customer to overdraw. Bankers do generally accommodate their customers by allowing such overdrafts to some extent; when they do so the legal effect is that they lend the surplus to the customer.”
And in Cuthbert v. Robers Lubbock & Co. (1909) 2 Ch. 226 at 233, Cozens – Hardy M.R. said:
“If a customer draws a cheque for a sum in excess of the amount standing to the credit of his current account, it is really a request for loan and if the cheque is honoured, the customer has borrowed money.”

All that has happened in this case is that the defendants by overdrawing their account requested for an overdraft which the plaintiffs by honouring their cheques agreed to give them. The only added colouration is the fact that the cheques paid in by the defendants were discovered missing and that the manager who dealt with the defendants on behalf of plaintiff was a brother of 1st defendant. These, notwithstanding, it was still possible for the plaintiffs to succeed on their claim without relying on any crime committed by anybody not the least the defendants. The lower Court was therefore wrong to have called on the plaintiffs to prove their case on a standard beyond reasonable doubt.
Even if there was the need for the case of the plaintiffs to be proved on a standard beyond reasonable doubt, the lower Court should have seen that the so-called averments in the amended statement of defence were upon a true construction an admission of the claim of the plaintiffs.It is settled law that a party is bound by admissions made on his pleadings: See Imam v. Ahmadu Bello University (1970) N.N.L.R. 37. It is also settled law that there is no issue between the parties in respect of matters expressly admitted on the pleadings and therefore no evidence is admissible in respect of those matters – See The British India Insurance Co. Nigeria Limited v. Thawardas (1978) 3 S.C. 143; Okporaoke v. Egbuonu & Ors (1941) 7 W.A.C.A. 53, 55.

The defendant having admitted that their account with the plaintiff was in the debit to the tune of N711,848.03 the plaintiffs were without further ado entitled to judgment.

It is my view that on the state of pleadings upon which this case went to trial, the only issue remaining to be resolved by evidence was whether or not the plaintiffs had agreed that Metropolitan Plastic and Chemical Company Limited should take over the assets and liability of the defendants including the overdraft which stood against the defendants.

In George Onobruchere & Anor v. Ivwromoebo Esegine & Anor (1986) 2 S.C. 385 at pp. 397 – 398, the Supreme Court per Oputa, J.S.C. said:
“An onus of proof does not exist in vacuo. The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be any burden of proof where there are no issues in dispute between the parties. For example, if the plaintiffs claim is admitted, there will no longer be an onus to prove what has been admitted by the opposite party. Therefore to discover where the onus lies in any given case, the court has to look critically at the pleadings. Where for instance the plaintiff pleads possession of the land in dispute as his root of title and the defendant admits that possession but adds that the land was given to the plaintiff on pledge, then the onus shifts onto the defendant to prove that the plaintiff is not the owner of the land his possession of which has been admitted.”
The defendants in this case having confessed their indebtedness to the plaintiffs, the onus shifted upon them to justify the ‘avoidance’ of the indebtedness which they pleaded. They asserted that the liability that previously attached to them had shifted to Metropolitan Metal and Chemical Company Limited. The plaintiffs never so pleaded. The onus was clearly on the defendants to prove that which they asserted.

But at the trial, the defendants never testified. Rather, they rested their case on the plaintiffs’. The evidence given by the plaintiffs’ witnesses was uncontradicted. As I said, the plaintiffs did not need to have called any evidence in any case in view of the state of pleading. The clear duty upon the lower court was to have given judgment in favour of the plaintiffs in terms of their writ. No other cause was open to the lower Court.

In the final conclusion, judgment is entered in favour of the plaintiffs/appellants against the defendants/respondents in the sum of N800,312.28 (Eight hundred thousand, three hundred and twelve naira twenty eight kobo) being balance of overdraft granted to the defendants/appellants by the plaintiffs.

The said amount is to attract compound interest at the rate of 10% per annum with monthly rests and with effect from 26/11/79 till the debt is fully paid.
The appellants are entitled to cost in the lower court which I fix at N500.00 and in this court which I fix also at N500.00.

Other Citations: (1988) LCN/0052(CA)