African Continental Bank Plc. & Anor V. Emostrade Limited (2002)

LAWGLOBAL HUB Lead Judgment Report

O. UWAIFO, J.S.C.

The plaintiff sued the defendants for an amount of N5,000,000.00 special and general damages for an alleged breach of contract. It is said that the plaintiff, a limited liability company, maintained a current account No.05474 with the first defendant’s Calabar branch. The second defendant was at all material times the branch manager of that branch. The breach of contract was attributed to the defendants’ failure to make available to the plaintiff its statements of account and copies of all cheques and other instruments drawn on the said account. The plaintiff contended that that failure was a breach of the defendants’ statutory duty to furnish the plaintiff with statements of his account quarterly. It was claimed that this default made it impossible for the plaintiff “to monitor or operate his (sic) account and thus making him (sic) unable to conduct his (sic) affairs and business prudently”.

In paragraph 1 of the amended statement of claim, it was averred that the plaintiff is a limited liability company incorporated under the laws of Nigeria. This averment was specifically and categorically denied and challenged in two paragraphs of the amended statement of defence. First, in paragraph 2, it was said:

“Paragraph I of the plaintiff’s amended statement of claim is denied. The plaintiff is not a limited liability company and is not a body known to the law which can sue or be sued and will at the trial be put to the strictest proof of its status.”

Second, in paragraph 17, it was said:

“The defendants herein will contend at the trial that the plaintiff is not a limited liability company and as such cannot maintain this action against the defendants.”

Furthermore, in two paragraphs of the amended statement of defence, paras. 5 and 13, the defendants clearly averred that the plaintiff, Emostrade Limited, was not and had never been its customer.

At the hearing, no evidence was led by the plaintiff to establish its status as a legal persona who can sue. The certificate of incorporation was not produced. On the contrary, among the seventeen exhibits tendered by the plaintiff were exhibits 16 and 17, which show that Emostrade, a registered trade name, is the customer with account No. 05474 with the first defendant. The trade name is solely under the ownership of Victor Ndoma-Egba. The account was opened on 18th May, 1987 see exhibits 16 and 17.

The learned trial Judge (O. Ita, J) in his judgment given on 5th February, 1996 observed on the question whether the plaintiff had been proved to be a liability company incorporated under the laws, that:

“It is in evidence that the defendant recognized the existence of the plaintiff on the basis of their pleading in amended statement of defence paragraphs 9, 10, 11 and 12. What is admitted need not be proved.”

It is perhaps pertinent at this stage to recite the said paragraphs of the amended statement of defence, and add paragraphs 8 and 13 thereof, in order to appreciate the learned trial Judge’s misconception that there was admission by the defendants that the plaintiff was incorporated. The defendants were in those paragraphs denying certain paragraphs of the amended statement of claim – para. 6, and later paras. 7, 8, 9 and 10. The relevant paragraphs of the amended statement of defence read:

“8. The 1st and 2nd defendants deny paragraphs 7, 8, 9, and 10 of the plaintiff’s amended statement of claim.

9. In further denial of these paragraphs, the defendants will at the trial contend that the averment therein contained bears no relevance to the plaintiff on record and will at the trial object to the tendering of any letter or documents, which are unrelated to the plaintiff on record. With particular reference to paragraph 9 of the statement of claim the 1st defendant owes no obligation to furnish statement of account to the plaintiff for the mere asking and without any offer of the fee or cost thereof.
10. The defendants vehemently deny paragraphs 12 and 13 of the plaintiff’s amended statement of claim. The defendants owe no contractual duty to the plaintiff to avail him with statements of account and cheques/other instruments drawn on the plaintiff’s account if any once the said cheques/other instruments have been paid. At any rate even if such a duty exists the plaintiff did not make a demand timeously and is estopped from suing on it. At any rate no such duty can arise without a quid pro quo and the plaintiff did not pay for the services for which he had now filed this action.
11. Still in answer to the said paragraph 12, the 1st defendant says that by a letter dated 14th April, 1993 the defendants through their solicitors J. Bassey Anickan & Associates, wrote to the plaintiff requiring him to make funds available to enable the bank put together a task force to be able to meet his requirement but he failed to reply to the said letter or to make any funds available. This letter is hereby pleaded and the plaintiff is given notice to produce same at the trial of this case.
12. In further denial of the said paragraph the 1st defendant says that it discharged its DUTY to the plaintiff, if any and that all NECESSARY statements of account were sent to the plaintiff even without its request and also at its request, through his accountant one Oluwaseyi Febelurin.
13. Paragraph 14 of the amended statement of claim is denied. In further denial of this paragraph the 1st defendant says that it will object to the tendering of any document which does not relate to the plaintiff as the plaintiff has never been the 1st defendant’s customer or at all.”

[Emphasis mine]

It is clear from the above, particularly paragraphs 9 and 13, that the defendants maintained that the present plaintiff as stated on record had been the first defendant’s customer. The other paragraphs were simply a traverse of averments made by the plaintiff. On the whole I cannot see what amount to an admission by the defendants of the existence of the plaintiff as said by the learned trial Judge. He even went further to observe: