Alhaji Mohammed La’aro Balogun V. United Bank For Africa Limited(1992)
LawGlobal-Hub Lead Judgment Report
OMO, J.S.C.
The respondent (as plaintiff) sued the appellant (as defendant) in the Kwara State High Court (Ilorin Division) claiming the sum of N24,103.53 being balance due on and unpaid on an overdraft facility granted to the appellant together with interest accruing on same until judgment is given, and an order that the judgment debt be paid at the rate of 13% per annum.
The parties duly filed their pleadings, the appellant’s pleading apart from a general traverse, being limited to two paragraphs in which he denied all the averments in the statement of claim (save an inconsequential one) and stated that “the defendant does not owe the plaintiff any Kobo whatsoever.:
After a hearing in which the appellant resolved at the end of the case of the respondent not to offer any evidence, the learned trial Chief Judge, in a reserved judgment, held that the respondent had failed to prove its case and dismissed same.
The respondent, who was dissatisfied with that judgment, appealed to the Court of Appeal where briefs were duly filed and oral arguments were presented. In its judgment the Court of Appeal allowed the appeal, set aside the judgment of the High Court and substituted same with an order of non-suit, solely on the ground, as stated by Maidama, J.C.A, in concluding his judgment that “In the case in hand, although the respondent totally denied the appellant’s claim, yet there was evidence which showed that the respondent was indebted to the appellant. That being the case, it seems to me that the scale of justice weighed more in favour of non-suit. On the facts of this case the respondent would not be entitled to judgment by dismissal of the appellant’s case. It was therefore wrong for the learned trial Chief Judge to enter such judgment.
Having regards to the circumstances of this case, I am of the Firm view that an order of non-suit will not be unfair or unjust to the respondent. ..
Against this judgment the appellant has appealed to this court relying on only one ground of appeal set out thus:-
“1. The learned Justices of the Court of Appeal erred and misdirected themselves in law in ordering a non- suit after holding that the plaintiff/appellant did not prove its case at the Ilorin High Court.
Particulars of error and misdirection in law.
i The proper order to make was a dismissal order as made by the High Court.
ii. The facts of the case are distinguishable from those in Yesufu v. A.C.B. Ltd. (1980) 1 – 2 S.C. 49 in that the defendant (appellant herein) had denied owing the plaintiff (respondent herein) any sum whatsoever.”
Only one issue for determination is also posed thereon, which appellant has stated in his brief to be –
“whether the High Court was right in dismissing the plaintiff’s case or that the Court of Appeal was right in ordering a non-suit”
Appellant’s counsel’s submissions may be summarised as follows:-
(1) that the evidence of two witness of the respondent (p.w.1 and p.w.2), both banking officials, are too much at variance with the pleadings; and were therefore rightly rejected vide Mogaji Atanda & Ors v.Salami Ajani & Ors (1989) 6 S.C.N.J 193; (1989) 3 NWLR (Pt.111) 511.
(2) that since the claim is in special damages the particulars must be specially pleaded and strictly proved. This was not done and the learned trial Chief judge was therefore right in dismissing the suit.
(3) that the facts of the present case on appeal are different and distinguishable from those of Yesuju v. .C.B. Ltd. (1980) 1/2 S.C.49 on which the Court of Appeal relied in allowing the appeal against the judgment of the High Court, substituting therefore an order of non-suit. The grounds for such differences mainly being that: whereas the defendant (Yesufu) in his case with A.C.B.Ltd. admitted owing some amount albeit less than the amount claimed, the defendant (appellant) in this case denied owing “any Kobo whatsoever”
(4) that the Court of Appeal did not base its decision on the pleadings and the evidence believed by the trial Judge. It made a different case for the parties than that which they fought in the High Court.
Respondent he concluded was unable to prove what it claimed the defendant owed it, and therefore his claim was rightly dismissed.
The respondent in his brief adopted appellants issue for determination. After briefly analysing the evidence led, particularly as to the amounts testified to as owing at various times, appellant’s counsel submitted that the only reasonable deduction from same is that the respondent is owing the Bank N67,102.55 out of which a balance of N31,000.00 would remain, after the appellant’s money in his Savings’ Account had been applied to offset part of the overdraft. Evidence as to the balance of N31,000.00 owing was given by P.W.1, who was not subjected to cross-examination. There was also no other contrary evidence led. Respondent’s counsel further submitted that it is trite law that where the defendant rests his case on that of the plaintiff, the defendant will be bound by the evidence called in support of the plaintiff’s case and the case must be dealt with as it stands vide Yuil v. Yuil (1948) All E.R. 183 (185); Parry v. Aluminium Corporation (1940) W.N. 44 (46); Laurie v. Raglan Building Co. Ltd. (1942) 1. K.B. 152 (156). Since there was no other evidence contrary to that of P.W.1, the learned trial Judge was wrong to have dismissed the case and the Court of Appeal was right to have reversed his judgment and entered a non-suit instead. He admitted that P.W.2 gave two conflicting amounts as overdraft facilities given. but submitted that this was a minor discrepancy which should not affect the respondent’s case so adversely as to lead to its dismissal. He submitted that if the evidence of the respondent is properly evaluated there was in fact no evidence between it and the respondent’s claim. The amount of N24,05.53 claimed on 25/7/83 with 3% per annum interest would have increased to N31,000 by 14/1/85 when P.W.I Testified as to the outstanding balance. The learned trial judge, he also submitted, had quoted two figures of (N28,000.00 and N61,000.00) which he relied on in disbelieving the respondent’s case. These figures he said were not supported by the record of proceedings. He urged the Court to discountenance (and not entertain) the submission that the claim is in special damages and therefore had to be strictly pleaded and proved, because there is no ground of appeal covering same vide Kolawole v. Alberto (1989) 1 N.W.L.R. (Pt. 98) 382. This is a proper case, he finally submitted, in which the dictates of justice demand that the case be not dismissed, and he be given an opportunity to take a further action to properly establish his claim vide Yesufu v. A.C.B. Ltd. (supra); Okpala v. Ibeme (1989) 3 S.C.NJ. 152; (1989) 2 NWLR (Pt. 102) 208; Olufosoye v. Olorunfemi (1989) 1 N.W.L.R. (pt.95) Airoe Construction Ltd v. University of Benin (1985) 3 S.C. 7 (23); (1985) 1 NWLR (Pt.2) 287.
A decision whether to support the judgment of the trial court or that of the Court of Appeal would appear to depend on a very narrow point. It is true that the trial court described the evidence of P.W.1 as “dilatory and unconvincing”, and that he came to the conclusion from all the evidence led
“that the plaintiffs have not been able to show by prepondence of evidence that the defendant is indebted to them in any sum of money. I find the evidence adduced in support of the plaintiffs’ case insufficient to fix the defendant with any liability. In cases such as the instant one……….. the court has a duty to establish “by arithmetical accuracy the amount which the defendant is owing.”
(Italics mine)
It must be admitted that the evidence led was indeed not enough to accurately prove all the amount the defendant is owing. But is it correct that it does not show the defendant (the appellant) as indebted to the plaintiff in any sum or at all To answer this question correctly it is well to firmly bear in mind the agreed submission of both counsel to the effect that the only evidence before the trial court, in law, is that adduced by the plaintiff; on which the defendant must be bound. Does that evidence not show that the defendant is owing some money However deficient that evidence is, it shows a starting overdraft figure of N30,000.00 an extension of that amount to N37,290.00: and a final figure, as at the time P.W.1 testified, of N61,000.00, and a balance of N31,000.00 if the balance of defendant’s Savings Bank Account of N28,000.00 is deducted. None of these figures were denied in evidence by the defendant (appellant). This is so because his bare denial in his pleadings is not evidence. It therefore has to be discountenanced in evaluating evidence vide Chief Omoboriowo & v. Or v. Chief Michael Ajasin (1984) 1 S.C. 206 (207); (1984) 1 SCNLR 108 at 113 where Sowemimo, CJ.N, stated as follows;
“It has been urged upon us that when pleadings are filed and issues joined, the court must of necessity decide on such issues whether evidence is led in support of any averments by either parties. This in my opinion is fallacious. With respect, I am unable to be persuaded, without any legal justification, to hold that such pleadings are nothing but mere averments; and judgments on such pleadings re based strictly on evidence led. If, therefore, issues are joined on any averments but no evidence is led to support such, the result.
(Italics mine)
The learned trial Chief Judge cited and relied on this quotation in coming to the conclusion that the plaintiff had failed to lead evidence in proof of the sum of N24,103.53 claimed by him. But he failed to apply it to come to the conclusion that there was, qua evidence (as distinct from pleadings) no denial of the evidence of the plaintiff. What the learned trial Chief Judge found against is “arithmetical accuracy” of the final figure claimed. In that he was correct. The only question that arises further is whether on the available evidence the correct final order was one of dismissal or non-suit.
It is admitted that the case of Chief Yesufu v. A.C.B. Ltd. is worthy of consideration given the facts of this case. Whilst the appellant says it is distinguishable, the respondent says it is on all fours with the present case on appeal and fully applicable thereto. In that case, the plaintiff bank got judgment for the sum of N661,993.42 in the High Court, being balance overdraft owing to them. On appeal to the Federal Court of Appeal (as it was then named), that Court allowed the appeals of both parties and non-suited the plaintiff bank, concluding that
“There is no doubt in our minds that the defendant is indebted to the plaintiff in some amount having regard especially to Exhibit 8 in this case. It is just that it is not possible to quantify the amount of his indebtedness on the authorities and the evidence before the Court. We are however satisfied that this is not a case where the plaintiffs case should be dismissed since that undoubtedly will be wronging the plaintiff. On the evidence before the lower court the defendant definitely is not entitled to judgment since it is clear that he owed something to the plaintiff. The defendant even admitted in cross examination that at the time a document, Exhibit 54 was made i.e. 31st December, 1969, he was owing the plaintiff about (18,000.00). The order we propose therefore to make guided by the decision of the Supreme Court in Chief Dada v. Chief Ogunremi and another (1967) N.M.L.R. 181 at 185 is to non Suit the plaintiff.”
(Italics mine)
In short, the order of non-suit was made and affirmed by the Supreme Court because the defendant was shown by the evidence (and in fact admitted) to be owing some amount much lesser than the amount claimed. The learned trial Judge says this case is distinguishable because there was an admission of some indebtedness by the defendant whilst plaintiff only failed to prove the quantum claimed by it. I am afraid all that is evident here is, a difference which is not distinguishing. In the instant case, uncontradicted evidence has been led to show that various sums were owed at various stages of the relationship of banker and client between the parties. Such evidence may not be the same as an admission by the defendant, but being uncontradicted the trial court cannot overlook same. All that the plaintiff/respondent failed to establish, at the end of his case, was the quantum of N24,103.53K. But what about the sum of N31,000.00 which was owing as at the date of evidence In the circumstances I entirely agree with the Court of Appeal that the case of Yesufu v. A.C.B. (supra) is applicable to the facts of this case. A dismissal of the entire claim of the respondent (plaintiff) would therefore be unjust, and this is a case where the cause of justice would be best served by giving the respondent an opportunity of proving the exact amount appellant owes him. No injustice would be done to the appellant whose “defence” is that he does not owe”one Kobo”, With the production of relevant papers and a statement of account he will be in a position to explain how, why and for what purpose, he lodged his share certificates and savings bank account with the respondent. An order of non-suit, as made by the Court of Appeal is therefore appropriate. The decision of the court of Appeal is therefore preferred to the Order of dismissal by the trial Chief Judge.
The objection by the respondent’s counsel to the submission that the claim should be strictly pleaded because it is a claim in special damages is well taken. It is not supported or founded on any ground of appeal, and will therefore be discountenanced.
In conclusion, this appeal is hereby dismissed and the judgment of the Court of Appeal is hereby affirmed. The respondent is entitled to the costs of this appeal which I assess at N1.000.00 only.
A. G. KARIBI-WHYTE, J.S.C.: I have read the judgment of my learned brother Uche Omo J.S.C, in this appeal. I agree entirely with his reasoning and conclusion that the appeal lacks merit and ought to be dismissed.
There is only one ground of appeal, and which resulted in the formulation of one issue for determination.
The ground of appeal reads:-
“1. The learned Justices of the Court of Appeal erred and misdirected themselves in law in ordering a non- suit after holding that the plaintiff/appellant did not prove its case at the Ilorin High Court.
Particulars of error
i. The proper order to make was a dismissal order as made by the High Court.
ii. The facts of the case are distinguishable from those in Yesufu v. ACB Ltd. (1980) 1 – 2 SC.49 in that the defendant (appellant herein) had denied owing the plaintiff (respondent herein) any sum whatsoever.”
The only issue for determination in the Appellant’s brief of argument before us states as follows:.
“Whether the High Court was right in dismissing the Plaintiff’s case or that the Court of Appeal was right in ordering a non-suit.”
The case was fought in the Court of trial on the pleadings of the parties. The Plaintiff’s statement of claim averred the circumstances of the indebtedness in paragraphs 4, 5, 7, 9, 11 and the interest accruing in paragraphs 6, 13,23,. In paragraphs 13, 14, 15,18, 19, 20, plaintiff averred the demand from the Defendant, and his failure to repay. The attempt by the Defendant to repay and the total
Indebtedness was averred in paragraphs 21, 22.
In his statement of defence, the defendant averred as follows:-
“1. The defendant denies paragraphs 1.3-24 of the statement of claim and requires strictest proof thereof.
- The defendant avers that the defendant does not owe the plaintiff any Kobo whatsoever.”
The defendant having joined issues in respect of all the averments did not lead any evidence to controvert or challenge any of them.
There was no specific denial of any of the essential issues averred in the plaintiff’s statement of claim. Plaintiff led evidence in support of the averments in the statement of claim. At the close of the case of the Plaintiff, the Defendant rested his case on the case of the Plaintiff and offered no evidence. Thus all the court had before it was the evidence of the Plaintiff in support of the claim before it.
The learned trial Chief Judge in a reserved judgment held that Plaintiff had failed to prove his case and dismissed the claim in its entirety.
In his judgment he held, at P.52 lines 3-9:
“I am satisfied that the plaintiffs have not been able to show by preponderance of evidence that the defendant is indebted to them in any sum of money. I find the evidence adduced in support of plaintiff’s case insufficient to fix the defendant with any liability.”
The reason for this finding follows immediately when he said. at P.53 lines 10-17
“In cases such as the instant one, where the defendant denies the claims of the plaintiffs, a plaintiff who comes to Court has a duty to establish by arithmetical accuracy the amount which the defendant is owing.It is not enough for the plaintiff to simply aver in his statement of claim without leading cogent evidence to establish those averments.”
It is important to observe that the learned trial Chief Judge found that plaintiffs granted defendant overdraft facility of N25,727, which was extended to N37,290 at the rate of interest of 13%. He also found that the facility was secured by the defendant with a share Certificate worth N50,000 in Phillip Marris Ltd., and his savings account No.1426 showing a balance of N28,000.00. The learned trial Chief Judge was not, on the evidence before him, satisfied whether the defendant was indebted to the plaintiffs, and if he is to what extent.
He relied for the holding on this issue on the evidence of PW 1 which he regarded as “dilatory and unconvincing:’ He said; at P.51 lines 10-26,
“At first he put the defendant’s indebtedness to the plaintiffs as over N28,000.00. In another breath he said it was over N31,000.00. And as if that were not enough PW 1 further compounded the confusion when he stated at the tail end of his evidence that the defendant was owing the plaintiff’s Bank over N61,000.00. Neither the evidence of PW 2 nor any of the five exhibits tendered by the plaintiffs has helped to shed any flood of light on this crucial issue. No statement of account was tendered in this case and Exhibit 2 on which the plaintiffs tend to put a lot of reliance is entitled to no weight since the maker of it, one Mr. Adeniyi is not a witness in the case. There is also very little assistance to be drawn from Exhibit 1,3 and 4 in resolving this crucial issue.”
The Court of Appeal, as I have already said, allowed the appeal of the Plaintiff. In its judgment it said, at P.84
“In the case in hand, although the respondent totally denied the appellant’s claim, yet there was evidence which showed that the respondent was indebted to the appellant. That being the case, it seems to me that the scale of justice weighed more in favour of non-suit. On the facts of this case the respondent would not be entitled to judgment by dismissal of appellant’s case. It was therefore wrong for the learned trial Chief Judge to enter such judgment.”
This is a direct answer to the reason of the learned Chief judge who distinguished the recent decision of this Court in Yesufu v. A.CR. Ltd. (1980) 1-2 S.C. 49 on the ground that,
“In Sumaila Yesufu’s case (supra) there was an admission by the defendant that he was indebted to the plaintiff in a certain sum of money. The plaintiff only failed to prove the quantum. That however is not the position in the present case where the plaintiffs have completely failed to prove their case and as such an order of non-suit as provided under Order 26 rule 3 of our High Court (Civil Procedure) Rules is not available to them in this case. – See Ferdinand George v. The United Bank for Africa Ltd. (1972) 8-9 S.c. 254; Olayioye v. Oso (1969) 1 All NLR. 281 at 284-285 and Anyakwo v. African Continental Bank Ltd. (1976) 2 S.C 41.
Before us, Mr. Ijaodola repeated the same argument he urged unsuccessfully in the Court below. He referred to the contradictions in the evidence of the two plaintiff’s witness, PW 1, both bank officials and submitted that the learned trial Chief judge rightly rejected them. It was further submitted that since the claim is in special damages, this must be specifically and strictly proved. Plaintiffs having failed to prove their claim, ought to fail. Learned Counsel distinguished the instant case from Yesufu v. A.C.B. (supra). It was finally submitted that the Court below decided the case on grounds different from that on which the parties have fought in the trial Court.
Learned Counsel to the Respondent supported the judgment. He analysed the evidence of the Plaintiff’s witnesses and came to the conclusion that the only reasonable deduction is that Defendant was owing Plaintiff the sum of N67,102.55.00 out of which there was extant a balance of N31,000.00 after deduction of money in Defendant’s savings account.
It was submitted that there being no contrary evidence the evidence of plaintiff must be believed. This is because the defendant is in the circumstance bound by the evidence called by the plaintiff. Learned Counsel conceded the contradictions in the evidence of PW2 as giving two conflicting amounts as overdraft facilities given to Defendant. He submitted that this is a minor discrepancy. It was submitted that considering the evidence as a whole there was no variance in Plaintiff’s claim. This is a proper case which demands in the interest of justice, that plaintiff should not be shut out for ever from claiming the amount due to them.
The issue for determination is a very narrow one of whether plaintiff’s claim ought to be dismissed, or he should be non-suited.
It is well settled law that where a plaintiff has failed to prove the claim before the court in its entirety such claim is liable to be dismissed. On the other hand, when the plaintiff has not totally failed to prove his claim, and the evidence before the court is that judgment could not be given to the Defendant, the court may exercise its discretion in such a case to non-suit the Plaintiff even without consent of the parties. It is the practice to give the parties the opportunity of being heard on the point.” – See Craig v. Craig (1967) NMLR. 52. The principle on which this rule is founded is the consideration whether dismissing the claim would be wronging the plaintiff, and result in injustice to either of the parties – See Craig v. Craig (1967) NMLR. 52. It is that it is the only just order, to make in the circumstances – See Dawodu v. Gomez (1947) 71 WACA. 151.
I have already reproduced in this judgment the reason the, the learned Chief Judge gave for dismissing Plaintiff’s claim. I have also given the reasons why the Court below entered a non-suit. I agree with the Court below that on the evidence before the learned trial Chief Judge, it will not be correct to hold as the learned trial Chief Judge did, that there was no evidence that defendant was indebted to the plaintiff in any sum or at all.
There was clearly evidence on the pleadings which was merely generally denied that Defendant was granted an overdraft facility of up to N61,000.00. There was also evidence that after deduction of N28,000.00, there was still a balance of N31,000.00. None of these figures was denied in evidence by the defendant. They are deemed to have been admitted – See Lewis and Peat (NR1) Ltd. v Akhimien (1976) 7 S.C. 157, U.B.N Ltd. v. Ozigi (1991) NWLR (Pt. 176) 677. The mere general denial of the defendant in his pleadings is not sufficient.
In Oke v. Aiyedun (1986) NWLR.(Pt.23) 548, this court reiterated the well settled principle that that which is not denied is deemed to have been admitted. In Akintola v. Solano (1986) 2 NWLR (Pt.24) 598, this court also held that a proper traverse or general denial usually contained in the first paragraph of every statement of Defence, as in this case, with respect to essential and material allegations in the statement of claim is not admissible as effective denial of such essential or material allegations. The averments in paragraphs 3-24 of the statement of claim are essential and material.
Following the above principles it seems to me quite-obvious that Defendant did not effectively join issues with the averments in respect of the indebtedness to the plaintiff. Besides, the evidence of the plaintiff’s witness as to the indebtedness stand uncontradicted. They are required to prove the claim before the court to the extent to which they are consistent with the claim in the statement of claim. Hence the Court of Appeal could say on appeal.
“There is no doubt in our minds that the defendant is indebted to the plaintiff in some amount having regard especially to Exhibit 8 in this case. It is just that it s not possible to quantify the amount of his indebtedness on the authorities and the evidence before the court. We are however satisfied that this is not a case where the plaintiff’s case should be dismissed since that undoubtedly will be wronging the plaintiff. On the evidence before the lower court the defendant definitely is not entitled to judgment since it is clear that he owed something to the plaintiff. The defendant even admitted in cross examination that at the time a document, Exhibit 54 was made, i.e, 31st December, 1968, he was owing the plaintiff about (pound)9,000 (N18,000). The order we propose therefore to make guided by the decision of the Supreme Court in Chief Dada v. Ogunremi and another (1967) NMLR. 181 at 185 is to non-suit the plaintiff.
I consider this a correct application of the principle and just decision. I do not consider his case as distinguishable from Yesufu v. A.C.B. Ltd. (supra). In both cases there is admission of the indebtedness by the Defendant. Although in Yesufu v. A.CB. Ltd. there is an express admission of indebtedness, there is admission by operation of the effect of faulty pleadings in the instant case. The trial court ought not overlook the uncontradicted oral evidence of the indebtedness of the defendant given by the plaintiff. The Defendant does not deserve judgment given in his favour – See Dada v. Ogunremi (1967) NMLR. 181.
In the circumstances, the failure of the plaintiff to prove the exact amount owed is not evidence that no sum is owing. It will not be wronging the Defendant to give plaintiff another Opporutnity to prove the exact amount which Defendant is owing him. – See Ejiofor v. Onyekwe & Ors. (1972) 1 AII NLR (Pt.2) 527. On the other hand it will be wronging the plaintiff to bar him from further proving his claim, since the Defendant will not on the evidence be entitled to judgment.
It seems most probable that with the production of the relevant documents plaintiff is in a position to establish the exact amount owed him by the Defendant. The indebtedness having been established, it will be both unfair and unjust to prevent him from proving the exact amount due. The order of non-suit is therefore appropriate. The Court of Appeal is therefore right to have reversed the learned trial Chief Judge and ordered a non-suit.
The appeal is therefore dismissed. The judgment of the Court below is affirmed. Respondent is entitled to the costs of this action assessed at N1,000.00 only.
S. KAWU, J.S.C.: I have had the advantage of a preview of the lead judgment of my learned brother, Uche Gmo, J.S.C, which has just been delivered. I am in complete agreement with him and for the reasons stated in the lead judgment, which I respectfully adopt as mine too will dismiss the appeal and affirm the judgment of the Court of Appeal with N1,000.00 costs awarded against the appellant and in favour of the respondent.
SC.247/1989
