Alhaji a. Olalekan V. Wema Bank Plc (2000)

LawGlobal-Hub Lead Judgment Report

TABAI, J.C.A.

This appeal is against the judgment of Adeniran J. of the High Court of Oyo State delivered on the 10th of October, 1994 in which the claim of the plaintiff/appellant was dismissed. The claim contained in paragraph 19 of the statement of claim was as follows:-

“1. Declaration that the failure or refusal of the defendant to pay the plaintiff the proceeds of the fixed deposit account covered by receipt No. 012823 of 27/1/92 which matured on the 27th January, 1993 amounts to a breach of contract.

2. Declaration that the defendant is liable to pay the plaintiff the principal sum plus interest thereon on the said deposit account up till the date of payment.
3. An order directing the defendant to pay the plaintiff forthwith the principal sum plus interest at the agreed rate up till the date of payment.
4. A further order directing the defendant to pay the plaintiff by way of damages enhanced interest on the principal sum at the rate of 8% per month less 17% per annum from 1st February, 1993 until the date of payment”.

The notice of appeal which was filed at the court below on the 19/12/94 contained the following grounds of appeal:-

“(i) The learned trial Judge erred in law when he held that, the plaintiff agreed that the sum of N2,000,000.00 was transferred to the account of Alsod Nigeria Ltd;

(ii) The judgment is against the weight of evidence.

(iii) The learned trial Judge erred in law when he held that the plaintiff was aware or ought to have been aware that the sum of N2,000,000.00 was transferred to the account of Alsod Nigeria Ltd. on the 7th February, 1992.

(iv) The learned trial Judge erred in law when he held that the plaintiff was estopped from claiming the amount he placed on fixed deposit with the defendant; and

(v) The learned trial Judge erred in law when he sat and delivered his judgment in Ibadan Judicial Division without a warrant so to do after his transfer to Ibarapa Judicial Division.”

In compliance with the rules of this court, Olujinmi SAN, filed the appellant’s brief of argument on the 19th May, 1995 and a reply brief on the 26th February, 1998. Mr. R. A. Ogunwole filed the respondent’s brief of argument on the 11th February, 1998. On the 19th October, 1999 counsel for the parties adopted and relied on the arguments contained in their briefs. From the five grounds of appeal learned counsel for the plaintiff/appellant formulated four issues for determination while respondent’s counsel raised three. In my view the four issues raised by the appellant adequately cover all the complaints in the five grounds of appeal. I would therefore adopt the issues formulated by learned counsel for the appellant. These are:-

“1. Whether the learned trial Judge was right when he held that the plaintiff agreed that the sum of N2,000,000.00 was transferred to the account of Alsod Nigeria Ltd;

2. Whether on the materials before the court, the trial Judge was right in holding that the plaintiff was aware or ought to have been aware that his fixed sum of N2,000,000.00 was transferred to the account of Alsod Nigeria Ltd. on the 7th of February, 1992;
3. Whether the learned trial Judge was right in upholding the plea of estoppel set up by the defendant; and
4. Whether the learned trial Judge who was at the time he delivered his judgment on the 10th of October, 1994, a Judge of Ibarapa judicial division, could sit in Ibadan judicial division without the warrant of the Acting Chief Judge to deliver his judgment.”

On issue 1, the substance of the argument of learned counsel for the appellant is that although the defendant/respondent pleaded in paragraph 14 of the statement of defence that the N2,000,000.00 fixed deposit was transferred to the account of Alsod Nigeria Ltd, the plaintiff did not agree either in his pleadings or evidence with the alleged transfer. He referred specifically to the evidence of the plaintiff under cross-examination when he denied knowledge of the said transfer. He further referred to paragraph 5 of the plaintiff’s amended reply to the statement of defence and contended that there was no basis for the learned trial Judge to read into it any agreement by the plaintiff to the alleged transfer. He submitted that since there is no evidence to support the learned trial Judge’s findings on the transfer, the finding cannot stand; and he relied on Borno Holding Co. Ltd. v. Bogoco (1971) 1 All NLR 324 at 326.

With regard to issue 2 it was the submission of learned counsel for the plaintiff/appellant that a company is at law a different person from its subscribers and relied on Salomon v. Salomon & Co. (1897) AC 22; and Ramanchandani v. Ekpenyong (1975) 5 SC 29. He contended therefore that Alsod Nigeria Ltd. is a distinct and different personality from the plaintiff. The entry “Credit transfer (others)” in Exhibit “F” did not, he argued, state whether it was the N2,000,000.00 fixed deposit or some other money that was transferred to the account of Alsod Nigeria Ltd., and that the oral evidence of DW3 and DW5 cannot be used to supplement Exhibit “F”. On this submission he relied on Bijou (Nig.) v. Osidarohwo (1992) 6 NWLR (Pt.249) 643 at 649. According to counsel the plaintiff/appellant only became aware of the transfer through Exhibit “C” which was the first official communication to him. He contended therefore that there was no evidence to support the finding of the learned trial Judge that the plaintiff/appellant was aware or ought to have been aware of the transfer.

With respect to the third issue it was submitted that before the defendant could rely on the plea of estoppel it must be specifically raised in the pleading and cited Adeniran v. Alao (1992) 2NWLR (Pt.223) 350. He contended that paragraph 22 of the statement of defence did not sufficiently raise the plea of estoppel and that there was also no evidence to support the plea. It was contended that the principle of estoppel could not apply since the learned trial Judge had found that the plaintiff/appellant did not authorise the transfer of the money. He argued that estoppel can only properly be raised in respect of an act done by a person and not one done by another person who is not his agent or privy. On the insufficiency of pleading he relied on Ibenwelu v. Lawal (1971) All NLR 23 (Reprint) at 27. He contended that the defendant/respondent was bound not only to plead estoppel with particulars but also the type of estoppel and relied on Nwobodo v. Onoh & Ors. (1984) 1 SCNLR (1984) 1 SC 1 at 37-38; Iga v. Amakiri & Ors. (1976) 11 SC 1 at 12-13; and Cross on Evidence 4th Edition page 285-301. On this issue of estoppel learned counsel identified four elements in Iga v. Amakiri (supra) at 12-13 none of which he argued, was established by evidence.

On the 4th issue it was contended that since the learned trial Judge had been transferred to the Ibarapa Judicial Division of the High Court of Oyo State, he was no longer competent to sit and deliver the judgment at the Ibadan Judicial Division without the warrant of the Acting Chief Judge. Finally, on the need to keep business and personal accounts in a bank separate and distinct, the learned Senior Advocate of Nigeria cited the case of Allied Bank Nig. Ltd. v. Akubueze (1997) 6 NWLR (Pt.509) 374 at 398. He urged that the appeal be allowed.

Respondent’s argument under its issues 1 and 2 covers the appellant’s issues 1, 2 and 3. In his argument learned counsel for the respondent made reference to some paragraphs of the pleadings, excerpts from the evidence of witnesses and the judgment of the learned trial Judge which included references to Exhibits B, E, F, J, L, M, N-N2, R, S and Q and contended that the judgment was supported by evidence of some more or less permanent or unassailable character. He relied on S. B. Faslzanu v. M. A. Adekoya (1974) 6 SC 83 at 92. It was his contention that estoppel was sufficiently pleaded and rightly invoked by the learned trial Judge. On the principle of estoppel learned counsel relied on Tika Tore Press Ltd. v. Abina (1973) 1 All NLR (Pt. II) 244; Dr. Esin A. Asin v. Matzen & Tinon (Nig.) Ltd. (1966) 1 All NLR 233 at 238-239; Offiong v. African Development Corporation Ltd. (1964) 2 All NLR 75; and Igor v. Amakor (1976) II SC 1.

On the 4th issue learned counsel for the respondent referred to section 32(1) and (2) of the High Court Law of Oyo State Cap 46. Laws of Oyo State of Nigeria and submitted that the division of the State into judicial divisions was only for administrative purposes and does not affect the validity of the judgment. He referred to the endorsement at page 137 of the record as to the reason why the judgment initially reserved for the 27/7/94 could not be delivered until the 10/10/94. According to counsel there was nothing on the face of the record on the date and other details of the transfer. He pointed out that the issue was not raised in the court below and argued that in the absence of any leave of this court to raise and argue the fresh issue, it ought to be struck out. Finally, it was urged that the appeal be dismissed.

1st and 2nd Issues:-

These two issues can conveniently be taken together since on the whole the arguments proffered thereon are premised on the question of whether the totality of the oral and documentary evidence tendered by the parties justified the learned trial Judge’s findings, conclusions and ultimate rejection and dismissal of the plaintiff/appellant’s claim. In other words, the question posed by the two issues, is whether the findings, conclusions and ultimate decision in the case were the result of a thorough appraisal of the totality of the evidence before the court. From the record the following facts were uncontroverted and thus established:

1. Alsod Nigeria Ltd. operated an account at the Mokola branch of the defendant bank. The plaintiff who was the chairman of the company was also the sole signatory to the account.
2. The plaintiff placed N2,000,000.00 from the said Alsod Nigeria Ltd. account in a fixed deposit account at the same branch in his personal name on the 27/1/92 for 1 year.
3. The plaintiff also operated three other accounts at the defendant’s Agodi branch in his personal name, in the name of Alsod Nigeria Ltd. and Maosawa Enterprises. There were debts owed in the three accounts and there were litigations with respect to the accounts in three separate suits namely 1/212/89, 1/188/90 and 1/503/90.
4. In a bid to settle the aforesaid debts the plaintiff by a letter dated 29/1/92, Exibit E, instructed the defendant to debit the account of Alsod Nigeria Ltd. at the Mokola branch with the sum of N267,645.21 and transfer same to the Agodi branch.

The all pervading question in this appeal is whether the defixing of the N2,000,000.00 in the personal account of the plaintiff/appellant by the defendant/respondent and transferring same back to the account of Alsod Nigeria Ltd. was with the authority and consent of the plaintiff/appellant. And a subsidiary issue is whether the payment of the sum of N267,645.21 was in full and final settlement of the debts owed in the three accounts at the Agodi branch. On this subsidiary issue the case of the appellant is that the transfer and payment of the sum of N267,645.21 on the 29/1/92 was in full and final settlement of the debts in the three accounts following which therefore the three suits were withdrawn. The result, according to the appellant, is that at the time the sum of N401,438.57 was transferred in purported settlement of the debts in the three accounts, no debt was in fact outstanding. The case of the respondent on the other hand is that the sum of N267,645.21 paid on the 29/1/92 was not accepted in full and final settlement of the debts on the three accounts and that the suits continued and eventually withdrawn not as a result of the 29/1/92 payment but as a result of the final payment of 7/2/92.

In the judgment the learned trial Judge at page 132 of the record considered this issue during which he examined Exhibits E, K, T, T1, T2, U, U1 and U2 and found that the said payment of N267,645.21 was not accepted by the respondent as full and final settlement of the debts in the three accounts and that the suits were withdrawn not after that payment but after the payment on the 7/2/92. The learned trial Judge also rejected the assertion of the appellant that as at the time the respondent transferred the sum of N401,438.57 to the three accounts at the Agodi branch no debts were outstanding in those accounts. I also had the opportunity of examining the Exhibits and I do not have any reason to interfere with the conclusions of the learned trial Judge on this issue. I agree with the learned trial Judge that the plaintiff/appellant whose duty it was to prove that the N267,645.21 payment was for full and final settlement of the debts owed in the three accounts failed to so prove. The result is that as at 7/2/92 when the sum of N401,438.57 was transferred to the three accounts at the Agodi branch, they were in debit. I would therefore resolve this subsidiary issue in favour of the respondent.

With respect to the main issue of whether the defixing of the N2,000,000.00 in the personal fixed deposit account of the plaintiff/appellant and transferring same back to the account of Alsod Nigeria Ltd. was with the authority and consent of the plaintiff the learned trial Judge considered the evidence inconsiderable details. He for instance, examined Exhibits A, B, C, D, F and J found nothing on the face of any of those documents in proof of the plaintiffs alleged oral instruction on the fixed deposit:- particularly having regard to the fact that Exhibit “A” the fixed deposit receipt, was still in the possession of the appellant. On this issue however the learned trial Judge took into detailed consideration the entries in Exhibits F and J and some other surrounding circumstances. The record shows that the Learned trial Judge took, in particular, the following facts into consideration:

1. The fact that the plaintiff did not query the statement of account Exhibit F issued on the 10/2/92.
2. The fact from Exhibit “F” that as at the close of 6/2/92 the account of Alsod Nigeria Ltd. was in debit to the tune of N20,308.58.
3. The fact from Exhibit “F” that following the transfer of N2,000,000.00 back to the account of Alsod Nigeria Ltd. its account was in credit in the sum of N1,979,691.42.
4. The fact from Exhibit F that following the transfer of the sum of N401,438.57 from the account the credit balance was reduced to N1,578,252.85.
5. The fact that the plaintiff issued a cheque Exhibit J on the 11/2/92 for the sum of N1,578,000.00 leaving a credit balance of N252.85 only.

Under cross-examination, the plaintiff tried to explain why the issuance of the cheque Exhibit J for the sum of N1,578,000.00 when he said that at the material time the account of Alsod Nigeria Ltd had a credit balance of N7,000,000.00. Apart from the fact that that fact was not pleaded the learned trial Judge held that there was no evidence in support thereof. I cannot find any such evidence either.

According to the learned trial Judge, there is no evidence that apart from the N2,000,000.00 any other sum was paid into the account of Alsod Nigeria Ltd. at the material time. At page 135 lines 13-17 the learned trial Judge concluded thus:

“The only conclusion I draw is that, at the time Exh. J was issued on the 11/2/92 the only money in the account of the company was the sum of N1,578,252.85 credit which was the amount remaining after deduction of N401,438.57 from the sum of N2,000,000.00 transferred from the plaintiffs fixed deposit account into the company’s account.”

In my view, the entries in Exhibit “P” and the absence of evidence that any money was paid into the account at the material time apart from the N2,000,000.00 justify the above quoted conclusion of the learned trial Judge. Learned counsel for the appellant contended that there was no evidence in support of the finding of the learned trial Judge that the plaintiff was aware or ought to have been aware that his fixed sum of N2,000,000.00 was transferred to the account of Alsod Nigeria Ltd. on the 7th February, 1992. There is, in my view, no substance in this argument. The entries in Exhibit “F” show that as at the close of 6/2/92 the account of Alsod Nigeria Ltd. was in debit in the sum of N20,308.58. And on the 7/2/92 when the sum of N2,000,000.00 in the plaintiffs fixed deposit account was purported to have been defixed and transferred back to the account of Alsod Nigeria Ltd. with the consent of the plaintiff, the account was in credit in the sum of N1,979,691.42. On that same 7/2/92 Alsod Nigeria Ltd. account at the Mokola branch of the defendant bank was debited with the sum of N401,438.57 which was said to have been transferred to the Agodi branch of the defendant bank to settle the indebtedness in three accounts therein. Alsod Nigeria Ltd. account was thus left with a credit balance of N1,578,252.85. And the issuance by the plaintiff of the cheque Exhibit “J” for the sum of N1,578,000.00 shows that he was aware of the transactions reflected in the entries in Exhibit “F”. I have no reason to fault the finding of the learned trial Judge about the plaintiff’s awareness that the N2,0000,000.00 in his fixed deposit account was defixed and transferred back to the account of Alsod Nigeria Ltd. In my view the defixing of the fixed deposit account and transfer of the sum of N2,000,000.00 back to the account of Alsod Nigeria Ltd. was with the authority and consent of the plaintiff. There is in my view sufficiently strong evidence in support of the finding of the learned trial Judge. It is trite law that a Court of Appeal ought not to interfere with the finding of a trial court where such finding is borne out by the evidence before it. See: Akpakpuna v. Nzeka (1983) 2 SCNLR 1; Ebba v. Ogodo (1984) 1 SCNLR 372: Chinwendu v. Mbamali (1980) 3-4 SC 11; and Adebanjo v. Brown (1990) 3 NWLR (Pt.141) 661 at 675 and 681. For the foregoing reasons I resolve the 1st and 2nd issues in favour of the respondent.

3rd Issue:-

This issue relates to the question of whether estoppel was sufficiently pleaded and rightly invoked by the trial court. Learned counsel for the appellant submitted that the doctrine was not specifically pleaded as required by law and relied on Adeniran v. Alao (supra). It was held in this case that a party who wants to rely on the equitable defence of estoppel, laches and standing by must specifically plead them so as to enable the plaintiff react to them one way or the other. That is the principle in Ibenwelu v. Lawal (1971) 1 All NLR 23. This does not however require the defence of estoppel to be pleaded in any special form in so far as the matter constituting it is stated in such a manner as to show that the party pleading intends to rely on it. See: Adebanjo v. Brown (1990) 3 NWLR (Pt.141) 661 at 677-678.

On this issue the learned trial Judge had this to say:

“I am satisfied from the averments in the amended statement of defence particularly paragraph 16 thereof that facts amounting to a plea of estoppel have been sufficiently stated.”

I agree entirely with this view of the learned trial Judge that paragraph 16 and other paragraphs of the statement of defence sufficiently pleaded facts which constitute the plea of estoppel. The finding by the learned trial Judge that plaintiff was aware of the defixing of the N2,000,000.00 fixed deposit and transfer of same to the account of Alsod Nigeria Ltd. is tantamount to a finding that he authorised the transfer. And having regard to the fact that he even drew from the account through Exhibit J shortly thereafter, the principle of estoppel should be invoked to prevent him from claiming the same N2,000,000.00 which he has utilised. In my view there is no substance in the argument of the appellant on this issue which I therefore also resolve in favour of the respondent.

4th Issue:-

On this issue, learned counsel for the respondent argued that there is nothing on the record to show that as at 10/10/94 when the learned trial Judge delivered the judgment against which lies this appeal, he had been transferred out of the Ibadan judicial division to the Ibarapa judicial division. I do not find anything on the record in proof of the transfer. The second point raised by respondent’s counsel is that since the issue was not raised at the court below the appellant ought to have sought and obtained the leave of this court to argue it. Although the appellant filed his reply brief on the 26/2/98 it was silent on the two points raised by the respondent.

It is trite law that leave of the appeal court is required before a point raised for the first time therein can be argued. This is because the appellate court has jurisdiction only to correct errors of the court below. See: Popoola v. Adeyemo (1992) 8 NWLR (Pt.257) 1 at 22. And although fundamental issues bordering on jurisdiction, competence or locus standi can be raised at the appellate court for the first time without leave as laid down in Tukurka v. Kwa-Kwa (1992) 2 NWLR (Pt.224) 449, the facts on which the issue is based must be borne out in the record of the court below. In this case, there is nothing on the record about the purported transfer. Under these circumstances there cannot be said to be any error of the learned trial Judge founded on his purported transfer for this court to correct. Any step taken on the purported transfer would be founded on mere speculation and I would not indulge in such speculation. For that reason I also resolve this issue in favour of the respondent.

In conclusion, I hold that the appeal lacks merit and is accordingly dismissed. The judgment of the lower court dated 10/10/94 be and is hereby affirmed. I assess the cost of this appeal to be N3,000.00 against the appellant in favour of the respondent.

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Other Citations: (2000)LCN/0649(CA)