Ben Ifeanyichukwu Okafor V. Union Bank of Nigeria Plc (1999)
LawGlobal-Hub Lead Judgment Report
SANUSI, J.C.A.
This is an interlocutory appeal against the ruling delivered on 1st July, 1997 by Shitta-Bey J, of the Lagos Division of the Lagos State High Court. The claim of the appellant who is the plaintiff in the court below as per his writ of summons is as below:-
(a) The sum of N2,500,000.00 (Two Million, Five Hundred Thousand Naira only) being special and general damages for the defendant’s negligence in wrongful and/or willfully, failed and/or refusing to pay or honour the plaintiffs cheque No. 00081 of Account No. 032154924 – 0232362502 dated 3rd August, 1993 drawn on the defendant Bank in favour of Prince Ani Orizu a valued business trading associate and customer and thereby causing the plaintiff damage.
(b) The defendant has failed and/or neglected to pay the said damages despite repeated demands.
Pleadings were filed and exchanged. Trial commenced in earnest at the court below on 1st July, 1997. The plaintiff (Appellant) opened his case and started to give evidence concerning the said cheque No. 00081 and identified same in the court. However even before his counsel sought for permission to tender it in evidence the defendant/respondent counsel objected on the ground that there were some endorsements on the said cheque which his client did not make. The learned trial Judge went ahead to deliver a short ruling rejecting the said cheque as follows:-
“In view of the endorsements on the cheque which is contrary to pleadings in this suit, the said cheque is hereby rejected” see pages 13-14 of the record of proceedings.
It is pertinent to note that the short ruling reproduced above was delivered before the said cheque was tendered in evidence by the plaintiff/appellant’s counsel. I shall come to that later. Dissatisfied with this ruling, the appellant appealed to this court. He filed four grounds of appeal out of which he distilled four issues for determination in this appeal. The four issues are as follows:-
- Whether the learned trial Judge was right in the ruling of the High Court rejecting the admissible evidence of cheque No. 00081 tendered by the appellant in evidence.
- What is it that is required to be pleaded in respect of a cheque on the pleading, whether every material particular written on the cheque or details of every marks, letter, figures or endorsements on the cheque or document itself. In other words, is it the law to reproduce every character, marks, letters figures or endorsements on acheque on the pleading when the document itself is pleaded.
- Whether the respondent bank can be the only one who can make endorsements on a cheque to which it is not the drawer or the drawee.
- Whether there was sufficient and credible evidence from the respondent pleadings before the High Court to warrant the rejection in evidence of the material and relevant cheque No. 00081 which is also admitted by the respondent in the pleading.
The respondent on the other hand formulated only one issue for determination which reads thus:-
“Whether having regard to the position of the pleadings and the relevant laws governing admissibility in this country, the trial Judge was right in rejecting the cheque in question.”
In my humble view the issue for determination formulated by both counsel can be narrowed to only one which can be formulated thus:-
“Whether the learned trial Judge was right in rejecting or refusing to admit the cheque because of the endorsements thereon which were not pleaded.”
The relevant averments in the pleadings which gave rise to the ruling appealed against are reproduced below for purpose of clarily and ease of reference.
The appellant/plaintiff in paragraph 4 of his statement of claim avers thus:.
“On 8/3/93 the plaintiff drew a cheque No. 00081 upon the defendant bank being the plaintiffs bankers for the sum of N24,000.00 (Twenty Four Thousand Naira only) payable to Prince Ani Orizu or order in payment or settlement of a trade debt due to the said Prince Ani Orizu who at all material times is a business associate and/or customer of the plaintiff.”
In reacting to the above averment, the defendant in paragraph 4 of its statement of defence stated as follows:-
“The defendant further admits the averment in paragraph 4 only to the extent the … cheque (2) was drawn by the plaintiff on the said account in favour of Prince Ani Orizu …”
There is no gainsaying that both parties by their pleadings have admitted the existence of the cheque in question. The cheque can therefore be said to have been pleaded by the appellant/plaintiff, since pleading is a notice to the other party which is intended to alert him on what the party filling it intends to rely on to prove his case or to defend a cause. See Obmiami Brick & Stone Nigeria Ltd. v. A.C.B. Ltd. (1992) 3 SCNJ at p. 4; (1992) 3 NWLR (Pt.229) 260. Pleading is never meant to serve as substitute evidence required to prove the facts unless such facts are admitted by the other party. See Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt.146) 578.
In the same token therefore a party to an action is expected to plead material facts only. It is not necessary for him to state in the pleading the subordinate facts which he intends to use in proving the material facts. Pleadings should thus always contain material facts and not evidence. See Thanni v. Saibu (1977) 2 SC 89 at 117; (1977) 2 SC 89 at pg 116; Okagbue v. Romaine (1982) 5 SC 133; Nwanji v. Coastal Services (Nig.) Ltd. (1999) 11 NWLR (Pt.628) 641.
Thus, having pleaded the cheque in question I feel the appellant has pleaded material fact as required of him by law of pleading. To insist that all endorsements on the said cheque must be pleaded for the cheque to be admissible in evidence is to call for plea of evidence which the appellant/plaintiff is not supposed to do. The issue of endorsements in my view, is another matter that has to do with proof and not admissibility. The cheque is meant to be a document presented to support the facts pleaded. There was therefore no need to plead the endorsements thereon before it becomes admissible in evidence. See Adepeju Odunsi v. Azeez Bamgbala (1995) 1 NWLR (Pt.374) 641 at 647.
Playing dealt with the issue of pleadings, the next issue is whether the said cheque is admissible in law.
The principle of admissibility of evidence has been restated in the case of Dr. Torti v. Ukpabi & 2 Ors. (1984) 1 SCNLR 214. (1984) NSCC No. 15, 141 at 49 (1984) 1 SC 370 at 412 per Sowemimo CJN (as he then was).
“I think that admissibility should be based on relevance. Once a matter, be it a document or oral evidence is relevant, it is admissible.”
Both parties have in their respective pleadings, laid sufficient ground for the admissibility of the said cheque in evidence. I shall even add that the cheque is even admissible even if it had merely been alluded to by the plaintiff/appellant. This is so because of the old law that for a document to be admissible it must be specifically pleaded has in recent time been relaxed.
The present legal position is that documents need not be specially pleaded so long as the relevant facts relating to the document are pleaded. See Thanni v. Saibu (1977) 2 SC 89 at page 116; Amadi v. Oluniati (1995) 7 NWLR (Pt.410) 739; Allied Bank (Nig.) Ltd. v. Akubueze (1997) 6 NWLR (Pt.509) 374.
Thus, the issue of relevance of the cheque is really not in doubt. It is infact on it that the appellant relied on to prove the case. The respondent/defendant also admitted its existence. In line with the decided authorities mentioned above I must say that the learned trial Judge erred in law in refusing to admit the cheque in evidence which is really admissible bearing in mind, of course, the position of the pleadings of the parties. I wish to comment on the procedure adopted by the learned trial Judge up to the stage he ruled against the admission of the cheque. As shown by the record of proceedings (page 1) the learned trial Judge allowed the defendant’s counsel to object to the admissibility of the cheque in evidence even before the plaintiff/appellant sought to tender it. It was after the objection of the respondent’s counsel that it was tendered and the judge upheld the objection of the respondent’s counsel. I am really reluctant or hesitant in commenting on such procedure because the appellant did not make it one of his grounds of appeal, and as well did not make it as one of the issues for determination he formulated. He has however advanced arguments on the issue in his brief: Ordinarily I should have discountenanced all the arguments related thereto. But in view of the importance of the matter and the need to state the position of law on that aspect of procedure, I shall say a word or two on it. It is a cardinal principle of law of evidence and practice in both civil and criminal matter that an objection to the admissibility of document sought by a party to be put in evidence is taken only when such document is offered in evidence and not before. See Chief Bruno Etim v. Chief Okon Ekpe (1983) 3 SC 12 at P. 36.
Before I conclude this judgment I shall refer to a submission by the learned counsel for the respondent in the concluding part of his brief of argument. Therein, he submitted, inter alia, that the issue of endorsement could only go to the question of weight and not admissibility. He further argued that he found it extremely difficult to support the trial Judge’s ruling whether in law or in equity. The cheque, according to the learned respondents/defendant’s counsel, is clearly admissible based on the state of the parties pleadings. I can not agree more. Perhaps that could be the reason why the said learned counsel merely adopted his brief when he argued the appeal but did not urge us to dismiss the appeal. This attitude of the learned counsel is highly commendable and is worth being emulated by others. It will augur well for smooth administration of justice.
In conclusion, I am of the view that the learned trial Judge is in error in refusing to admit the cheque in evidence. The cheque is admissible in evidence. The appeal is meritorious. It therefore succeeds. The trial court is ordered to admit the cheque in evidence and proceed with the trial. I will not make any order as to cost.
Other Citations: (1999)LCN/0548(CA)
