Co-operative Development Bank Plc V. Joe Golday Company Ltd. & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

EKPE, J.C.A.

This is an appeal against the judgment of Hon. Justice G.G. Ezekwe delivered at the Federal High Court, Calabar on the 9th day of December, 1997 in favour of the plaintiffs.

By a writ of summons filed in the Federal High Court, Calabar the plaintiffs claimed against the defendant six reliefs, but in the statement of claim which superceded the writ of summons the plaintiffs claimed seven reliefs as set out hereunder:

A declaration that the consolidation of the accounts of the 1st and 3rd plaintiffs by the defendant without the prior or any lawful authorisation in that behalf is null and void.

2. A declaration that the defendant was not entitled to debit the accounts of the 1st and 2nd plaintiffs save as authorised by the said plaintiffs or in the normal and ordinary course of Banking and an order directing the defendant to reverse all such false, fraudulent or excessive debits.
3. An order directing the defendant to restore all the shares of the 1st and 5th plaintiffs surrendered to the defendant as a result of the false representation made by the defendant to the 6th plaintiff as to the real state of the accounts of the 1st and 2nd plaintiffs and payment to the 1st and 5th plaintiffs of all the dividend, bonus, shares and all other benefits attaching to the said shares from the time of their purported surrender.
4. Payment over to the 1st and 5th plaintiffs of the sum of N7,162,264.90 and interest being the dividends due to the 1st and 5th plaintiffs for the year 1995, which amount the defendant withheld in purported part settlement of the debts allegedly owed by the 1st and 3rd plaintiffs.
5. Payment over to the 6th plaintiff of the sum of N5 million and interest being value of the house at Ikoyi sold and retained by the defendant in purported part settlement of the debt allegedly owed by the 1st and 3rd plaintiffs.
6. Damages in the sum of N50 million for fraudulent tampering with the accounts of the 1st and 2nd plaintiffs and for the distress and embarrassment caused to the Directors of the 1st and 2nd plaintiffs as a result of the threat and false representation as made by the defendant as to the true state of the plaintiffs accounts.
7. An order restoring the 6th plaintiff to the Board of the defendant with effect from the date of his purported resignation”.

The parties filed and exchanged pleadings. In the statement of defence, the defendant denied the plaintiffs claims and counter-claim against the plaintiffs jointly and severally as follows:

“(i) Judgment for the outstanding sum of N18,249,848.88 with interest at the rate of 21% per annum from 31/12/96 until entire liquidation of amount.

(ii) An order that by deposit of their Title Deeds the plaintiffs have created equitable mortgage in favour of the defendant and same to be sold by the defendant.

(iii) A declaration that the resignation of the 6th plaintiff from the Board of the defendant (by their letter dated 26/10/95) is proper.”

The plaintiffs in turn filed a reply to the statement of defence and counter-claim and also denied the counter-claim.

The facts of the plaintiffs’ case as set out in their statement of claim which spans across 33 paragraphs can be summarised thus:

The defendant is a commercial bank. The 1st, 2nd, 3rd and 4th plaintiffs are companies incorporated in Nigeria and also customers of the defendant maintaining separate accounts with the defendant at some of the various branches of the defendant Bank. The 5th plaintiff is the wife of the 6th plaintiff and also a Director of the 1st and 2nd plaintiffs. The 6th plaintiff is the Chairman/Chief Executive of the 1st to 4th plaintiffs. Until the events giving rise to this action, the 1st and the 5th plaintiffs held 4,468,318 shares and 3,489,743 shares respectively in the defendant Bank which holding came to about 16% of the total share capital of the defendant. By virtue of this holding the 6th plaintiff became a member of the Board of Directors of the defendant and Chairman of its Finance Committee. The 1st and 2nd plaintiffs maintained separate accounts with the defendant at the Broad Street, Lagos Branch of the defendant, while the 3rd and 4th plaintiffs maintain separate accounts with the defendant at the Idumota Street, Lagos Branch of the defendant.

Prior to the events leading to this action, the 1st plaintiff had on the 4th day of April, 1991 by a Deed of Legal Mortgage obtained an over-draft of N2.5 million from the defendant, and by various variations of the Deed of Legal Mortgage the overdraft facility was increased to N5 million. There had been cordial business relationship between the plaintiffs and the defendant until the 21st day of September, 1995 when the Chairman, Board of Directors and the Managing Director of the defendant invited the 6th plaintiff to Lagos and thereat informed him that the accounts of the 1st and 3rd plaintiffs were over-drawn without giving any details of the amount involved. Subsequently, a meeting was held on the 7th of October, 1995 whereat the Chairman, some Directors of the defendant and the 6th plaintiff discussed the issue of the total unauthorised indebtedness of the 1st, 3rd and 4th plaintiffs to the defendant amounting to N64,043,389.88. The 6th plaintiff was pressurised and threatened to make proposals for the repayment of the debt, otherwise he would be reported to the regulatory authorities to take appropriate action to recover the indebtedness including prosecution under Decree No. 18 of 1994. The 6th plaintiff was also pressurised to resign his membership of the Board of Directors of the defendant Bank which he did. Believing that the defendant’s claim of indebtedness was correctly justified the 6th plaintiff authorised the defendant to sell his personal property situate at No. 82 Norman William Street, Ikoyi, Lagos. He also delivered to the defendant the documents of his Title to the said property in order to facilitate the sale of the property by the defendant. Also, the shares of the 1st and 5th plaintiffs in the defendant Bank were surrendered to the defendant for sale and the defendant sold the shares to other Directors of the defendant Bank at N3.50 per share which was lower than the real value of the shares.

In the interim, the 6th plaintiff engaged the services of a firm of auditors led by one Elder Udo-Mbang to reconcile the accounts of the 1st to 4th plaintiffs with the defendant Bank. The auditors after close scrutiny of the accounts found instances of manipulation of the accounts of the 1st to 4th plaintiffs by the defendant, consolidation of the 1st and 3rd plaintiffs accounts without due authorisation, false and fraudulent debits or charges in the accounts of the 1st and 2nd plaintiffs with huge sums of money by the defendant without any authorization thus creating huge over-draft with attendant excessive commissions and interest. Consequent upon these findings of the auditors and after the parties were unable to reconcile their accounts, the plaintiffs brought this action at the Federal High Court, Calabar claiming the reliefs already set out in the statement of claim.

At the hearing of the action, the plaintiffs called three witnesses whilst the defendant called two witnesses. After the close of the case of the parties, the learned counsel on both sides submitted written addresses to the trial court.

In his considered judgment, the learned trial Judge gave judgment in favour of the plaintiffs and dismissed the defendant’s counter-claim. At pages 163 and 164 of the record of proceedings the learned trial Judge stated thus:

“From the evidence before me, the plaintiffs have proved some of their claims on balance of probability and they are entitled to judgment as follows:

1. I declare that the consolidation of the 1st and 3rd plaintiffs (accounts) by the defendant without the prior or any lawful authorisation in that behalf is null and void.
2. I hereby make an order directing the defendants to restore all the shares of the 1st and 5th plaintiffs surrendered to the defendant as a result of the false representations made by the defendant to the 6th plaintiff as to the real state of the accounts of the 1st and 2nd plaintiff and payment to the 1st and 5th plaintiffs of all dividends, bonus shares and all other benefits attaching to the said shares from the time of their purported surrender.

Payment over to the 1st and 5th plaintiffs of the sum of N7,162,264.00 and interest being the dividends due to the 1st and 5th plaintiffs for the year 1995 which amount the defendant withheld in purported part settlement of the debits alleged owed by the 1st and 3rd plaintiffs. I declare that the defendant was not entitled to debit the accounts of the 1st and 2nd plaintiffs save as authorised by the said plaintiffs or in the normal and ordinary course of banking and an order directing the defendant to reverse all such false, fraudulent and excessive debits. I award the sum of N1 million as general damages in favour of the plaintiffs against the defendants. The counter-claim is dismissed”.

The Court also found as a fact the sum of N127,623,809.69 was withdrawn from the accounts of the 1st plaintiff and so ordered that the said sum be credited in the accounts of the 1st plaintiff as the action of the defendant was false and fraudulent in this regard.

Aggrieved by the judgment of the learned trial Judge, the defendant has appealed to this Court on a total of five grounds of appeal, the first of which is the original ground of appeal, while the rest are additional and/or further additional grounds of appeal filed with the leave of the court. I shall re-produce the grounds of appeal with their particulars as follows:

GROUND 1: (Original ground)

The learned trial Judge erred in law:

(a) In granting reliefs claimed in the action when it was glaring that the plaintiffs failed to prove their claim as pleaded in the statement of claim.

(b) Failure to take into account Section 18(3) and (9) of the Banks and Other Financial Institutions Decree 1991.

Particular of Errors

(a) There was no evidence of lodgment of various sums of money amounting to N127,623,609.69 in the account of the 1st plaintiff.

(b) The grant of the said relief that the first plaintiff’s account be credited with the said sum of N127,623,809.69 is gratuitous, a role which a trial court is not expected to perform more so that:

(i) There was no evidence that the said account was either lodged by cash, cheque or other instruments.

(ii) The said credits were illegal fund movements instigated by the plaintiffs to hide their indebtedness from the regulating authorities.

(3) There was evidence that the plaintiffs sold their shares to the defendant voluntarily and as such not entitled to them (inclusive of the ancillary benefits) any more.

(4) There was evidence that the trial Judge discountenanced the defendant’s reply to the plaintiffs address on points of law giving strong indications that the Judgment was ready before the submission of the written addresses.

Ground 5: (Additional grounds)

The trial court erred in law by assuming jurisdiction to adjudicate on the subject matter, when it lacks jurisdiction so to do.

Particulars of Error

(i) The claim of the plaintiffs as constituted arose from a dispute between an individual and his bank in respect of transactions between the individual customer and the bank.

(ii) The Federal High Court jurisdiction under Section 230(1) (d) of Decree No.107 of 1993 by proviso thereto is ousted from entertaining the claims of the plaintiffs in its (sic) entirety.

Ground 6: (Further additional grounds)

The learned trial Judge erred in law in awarding Judgment to the plaintiffs despite the disclosures in evidence, establishing offences against the 6th plaintiff under section 18(3) and (9) of the Banks and other Financial Institutions Decree No. 25 of 1991.

Particular of Error

(a) The admitted/implied failures of the 6th plaintiff to disclose to the defendant/appellant’s Board of Directors his interest in the 21 Companies, the operations of whose Bank accounts with the defendant/appellant Bank formed the foundation of the reliefs sought, constituted offences under section 18(9) of Decree No. 25 of 1991.

(b) The 6th plaintiff in cross-examination admitted his status as a Director of the defendant/appellant Bank and as Chairman of the Bank’s Finance Committee, between 1991-1995. Furthermore, the evidence before the court show (sic) that the 6th plaintiff as at 1995 had 4,468,318 shares of N2.00 each in the defendant/appellant Bank, amounting to approximately 9% of the total share holding in the said Bank.

(c) The principle of public policy precludes a plaintiff in such circumstances from reaping any benefits/reliefs or rights arising from the commission of such illegality/offences.

Ground 7: (Further additional grounds)

The learned trial Judge misdirected himself on the evidence and/or failed to evaluate the same properly or at all and thereof came to the wrong conclusion, occasioning thereby a serious miscarriage of justice

Particular of Error

(a) None of the findings and/or consequent orders or reliefs granted/made in the suit in favour of the plaintiffs can be sustained on the evidence/materials placed before the court.

(b) It was wrong to hold that “the 2 accounts were never operated by the 1st or 6th plaintiffs, but (was) only operated by Mr. E. O. Ntui, the Branch Manager of the defendant Bank”, when on the straight evidence of the 6th plaintiff several instances were established identifying him with the operation of all the accounts involved in the proceeding.

(c) It was wrong for the court to reach the conclusion that “the defendant operated the said account of the plaintiff from which huge sums of money was (sic) fraudulently removed, amounting to N127,623,809.69 … which should now be credited to the plaintiff’.

(d) The same vice(s) affect the findings/conclusions reached by the court on the issues of the transfer/sale of the shares, willingly surrendered by the plaintiffs to the defendant, the matter of (imaginary) consolidation of the accounts and the unwarranted award of N1 million general damages.

Ground 8: (Further additional grounds)

The learned trial Judge erred in law in dismissing the defendant’s (appellant’s) counter-claim for N13 million against the plaintiffs.

Particulars of Error

(a) There were before the court a (surfeit) of irresistible evidence partly through the admissions of the 6th plaintiff and partly by the various exhibits tendered at the trial including Exhibits A, B, C, F, K, N, Q, Exhibits 10, 11 and Y establishing the indebtedness in favour of the defendant/appellant.

(b) The only reasons (sic) adduced for taking that course was that “since the alleged overdraft is still disputed by the plaintiffs and the defendant, what then is the basis of counter-claiming for the sum of N18,243,848.88. I also hold that the defendant led no evidence to prove counter-claim”; both of which either beg the issue, instead of deciding it and/or do not in any way flow from the evidence.

(c) The counter-claim was infact for only N13 million, not N18,249,848.88 as found by the court”.

Henceforth in this Judgment, the defendant shall be referred to as the appellant while the plaintiffs shall be referred to as the respondents.

In accordance with the rules of this court, the parties filed their respective briefs of argument in this appeal. The appellant identified four issues for the determination of the appeal to wit:

(i) Whether the twin public policy principles of ‘ex turpi causa’ and ‘in pari delicto’. did not operate to disentitle the plaintiffs from the grant of the reliefs sought in the proceedings, in view of the patent disclosures of the 6th plaintiff’s offences against the provisions of Section 18(3) and (9) of Decree No. 25 of 1991?.

(ii) Whether the conclusions/orders arrived at by the trial court can properly be sustained on the evidence and other material exhibits placed before the court?.

(iii) Was the trial court right in dismissing the defendant’s counterclaim?.

(iv) If the answers to (i), (ii) and (iii) are in the affirmative; whether the trial court had jurisdiction to entertain and/or adjudicate over the suit as constituted and in the light of the evidence disclosed at the trial?”.

The respondents also framed four issues for the determination of the appeal thus:

“1. Whether on the pleadings and the evidence the learned trial Judge was justified to grant the reliefs granted?.

2. Whether the 6th respondent violated the provisions of Section 18(3) and (9) of Decree No. 25 of 1991 and if so, whether the respondents’ suit in the lower court was vitiated by the public policy principles of “ex turpi causa in pari delicto?”.
3. Whether the trial court was right when it dismissed the counterclaim of the appellant?.
4. Whether the lower court had jurisdiction to entertain the respondents’ suit in view of the provisions of section 230(1) (d) of the Constitution (Suspension and Modification) Decree No. 107 of 1993.

From the comparison of the Issues formulated by the parties in their briefs of argument, I realise that Issue No. (i) in the appellant’s brief corresponds with Issue No.2 in the respondents’ brief; Issues No. (ii) in the appellant’s brief is similar to Issue No.1 in the respondents’ brief; Issue No. (iii) in the appellant’s brief is the same as Issue No.3 in the respondents’ brief and finally Issue No. (iv) in the appellant’s brief corresponds with Issue No.4 in the respondents’ brief. Therefore, since the issues in the appellant’s brief are replicated in the respondent’s brief as I have indicated above, I will proceed to consider the issues in the appellant’s brief of argument for the determination of this appeal. In this court both parties adopted their respective briefs of argument and briefly made oral arguments in expatiation of the briefs.

Issue No. (i) in the appellant’s brief is whether the twin policy principles of ‘ex turpi causa’ and ‘in pari delicto” did not operate to disentitle the plaintiffs from the grant of the reliefs sought in the proceedings, in view of the patent disclosures of the 6th plaintiff’s offences against the provisions of section 18(3) and (9) of Decree No. 25 of 1991. It is the contention of the learned counsel for the appellant that the 6th respondent by virtue of his position as a Director and Chairman of the Finance Committee of the appellant Bank introduced 21 companies to the appellant bank to which various heavy sums of money were granted by the appellant without any Naira cover for the purposes of obtaining foreign exchange used for various imports and yet the 6th respondent failed to declare his interest in them in contravention of section 18(3) of the Banks and Other Financial Institution Decree No. 25 of 1991, which failure constitutes an offence under sub-section 9 of section 18 of the same Decree. He submitted that it is against the public policy principle ex turpi causa non ortitur action for the 6th appellant to reap or benefit from his illegality.

The learned counsel further contended that despite the pleadings, the evidence led and address submissions made on this issue, the learned trial Judge did not as much as make even a scathing reference thereto throughout the judgment. He therefore submitted that the learned trial Judge ought to have considered this issue but having failed to do so, this court can validly intervene by dismissing the suit of the aforesaid principles of public policy. For these submissions learned counsel referred to the following cases – Scott v. Brown (1892) 2 Q.B. 724 at 728; Ogwuru v. Co.-operative Bank of Eastern Nigeria Ltd. (1994) 8 NWLR (Pt.365) 685 at 702; Salako v. Dosumu (1997) 8 NWLR (Pt. 517) 371 (1997) SCNJ 278 at 301; Fashanu v. Adekoya (1971) 1 ANLR (Pt.1) 35; Balogun v. Agboola (1974) 10 SC 111; Ebba v. Ogodo (1984) 1SCNLR 372, (1984) 4 SC 84.

The learned counsel for the respondents in the brief of argument on this issue pointed out that there was no evidence that the 6th respondent had any interest in the 21 companies and that the mere fact that they were introduced by the 6th respondent is not sufficient interest in those companies to him. That the said companies were not granted loans or unauthorised credit as claimed by the learned senior counsel for the appellant and moreover, there is no evidence to support that contention apart from insinuations by the appellant of what interest or benefit the 6th respondent derived or had in the 21 companies introduced to the appellant. He contended that the introduction of the 21 companies is not an offence under the Banks and other Financial Institutions Decree No. 25 of 1991, but it is the failure to disclose an interest in such companies that is an offence. He posited that the 1st and 6th respondents have no interest in the 21 companies introduced by the 6th respondent.

Furthermore, the learned Counsel argued that assuming but not conceding that the 6th respondent violated the provisions of section 18(3) and (9) of Decree No. 25 of 1991, such violation does not thereby vitiate the entire suit in respect of the other respondents against the appellant, because the 6th respondent is just one of the respondents in the suit. It is also his argument that the 6th respondent was not being tried in the lower court for offences against Decree No. 25 of 1991.

Moreover, he argued that this suit was not predicated on the directorship of the 6th respondent in the appellant bank so as to call in aid his violation of the provisions of section 18(3) and (9) of Decree No. 25 of 1991.

Section 18(3) of the Banks and other Financial Institutions Decree No. 25 of 1991 provides as follows:

“Every director of a Bank, who has any personal interest whether directly or indirectly, in an advance, loan or credit facility or proposed advance, loan or credit facility from that bank, shall as soon as practicable, declare the nature of his interest to the Board of directors of the Bank, and the secretary of the Bank shall cause such declaration to be circulated forthwith to all directors.”

Also sub-section (9) of section 18 of the Decree aforesaid provides thus:

“Any Director who contravenes sub-section (3) or (6) of this section is guilty of an offence under this section and liable on conviction to a fine of N100,000.00 or to imprisonment for a term of 3 years or to both such fine and imprisonment for a term of 3 years or to both such fine and imprisonment.”

The question that arises is whether the 6th respondent was in breach or contravention of section 18(3) of Decree No. 25 of 1991 for section 18(9) of the said Decree to be invoked against him?. I do not think that it is necessary to attempt an interpretation of the provisions of section 18(3) of Decree No. 25 of 1991. This is so because the provisions are so clear and unambiguous that what is only required is to give effect to their ordinary or literal meaning.

In my view therefore, Section 18(3) of Decree No. 25 of 1991 means what it says. The nature or personal interest whether directly or indirectly that a Director of a Bank is required to declare, is limited to any advance, loan or credit facility or proposed advance, loan or credit facility from the Bank. In my view, there is nothing in the words used in section 18(3) of the Decree to conjure the interest in a wider sense than what is expressed therein. By the ejusdem generis principle, the interest must be circumscribed within or limited to any advance, loan or credit facility, or proposed advance, loan or credit facility from the bank. It is not in dispute that the 6th respondent was at the material time a Director and chairman of the Finance Committee of the appellant. It is also not in dispute that the 6th respondent introduced 21 companies to the appellant to do business with the appellant. What is in dispute and indeed the grouse of the appellant is that the 6th respondent introduced those companies to the appellant for the purpose of doing business with the appellant without the 6th respondent declaring his financial interest in them. In his evidence in-chief at page 9 of Record No.2 of this appeal from lines 5 to line 9, the 6th respondent testified thus:

“I was the Chairman of the Finance Committee of the defendant. I have no powers to approve loans. I did not approve any loan. I introduce (sic) companies to the defendant but not fraudulently.

We did not make any loan with the companies (1) introduced to the defendant.”

There are also other instances where the 6th respondent testified that he introduced 21 companies to do business with the defendant and every business that the companies did were well documented. That the companies participated in foreign exchange business with the defendant and benefited from the bids.

On the other hand the DW1 testified in-chief at page 25 of Record Book No. 2 that the companies were so introduced and participated effectively in most banking transactions including among others loans and advances. With this scenario of the evidence, can it be seriously contended that the 6th respondent had any personal financial interest in the 21 companies he introduced to the appellant the nature of which he failed to declare as required by section 18(3) of Decree No. 25 of 1991. I do not think so. There was no evidence before the learned trial Judge that the 6th respondent has any direct or indirect personal interest in any advance, loan or credit facility or proposed ones in any of the 21 companies he introduced to the appellant for business transactions. Indeed, the mere fact that the 6th respondent introduced the companies to the appellant is not enough to ascribe financial interest in them to the 6th respondent. It will be acting within the realm of conjecture or speculation for this court to hold that the 6th respondent had any financial interest in any of those companies he introduced to the appellant. Even the evidence of DW1 is not convincing enough to establish that those companies received loans and/or advances. Loans and advances are not granted by mere word of mouth. There are procedures and documentations for granting loans and advances and none was tendered in evidence by DW1 to establish beyond any conjecture that any of the companies was granted loans or advances by the appellant. The burden is on he who asserts to establish the positive of his assertion.The mere ipse dixit of DW1 is not enough to discharge this burden on the appellant in the absence of credible documentary evidence that those companies or any of the associates was granted any loan or advance or credit facility by the appellant.

Therefore, in my candid view, there is no credible evidence adduced by the appellant upon which to invoke sections 18(3) of Decree No. 25 of 1991 against the 6th respondent. This issue must be decided in favour of the respondents.

Issue No. (ii) in the appellant’s brief is whether the conclusions/orders arrived at by the trial court can properly be sustained on the evidence and other material exhibits placed before the court.

Under this issue the learned counsel for the appellant alluded to various findings and orders made by the learned trial Judge which were not supported by evidence before the court and contended that such findings and/or orders are unjustified and perverse. He itemised the various complaints under sub-issues as follows:

(a) Unauthorised opening or creation of 2 accounts – No.100621-001 and No.100622 -001 in the names of Hillman Nig. Ltd. and Stellfurn Nig. Ltd. respectively.

(b) False and fraudulent/unauthorised debit made up of N127,623,809.69.

(c) Unauthorised sale of plaintiffs’ /respondents’ shares.

(d) Consolidation of Accounts.

(e) Award of general damages.

I shall now proceed to consider the above sub-issues seriatim. On Issue No. (ii) (a) above, the learned Counsel for the appellant made a heavy weather in his brief of argument against the finding of the learned trial Judge that the 2 accounts in question were never opened/operated by the 1st or 6th respondent but only by Mr. E. O. Ntui, the Branch Manager of the defendant Bank. He submitted that from the pleadings and evidence, the trial court’s finding on this issue was totally perverse and unjustifiable.

Now, what are the pleadings on this issue of unauthorised opening or creation of the said accounts No.100621-001 and 100622-001. In paragraphs 11(59) and 11(60) of the statement of claim the respondents averred as follows:

“11 (59) In or about October, 1994, the defendant without authority of the 1st plaintiff created account No. 100621-001 in the name of Hillman Nig. Ltd. with address c/o the Branch Manager (Mr. E.O. Ntui) CDB Plc, P.M.B. 24, Campbell Street, Lagos, instead of debiting the bids to the 1st plaintiff’s account as was formerly the case and went ahead to transact fraudulent debits as follows:

“11(60) In or about October, 1994, the defendant, without the prior or any authority of the 1st plaintiff created an account No. 100621-001 in the name of Stellfurn Nig. Ltd. with address c/o the Branch Manager (Mr. E.O. Ntui) CDB Plc, L.M.B. 24, Campbell Street, Lagos, instead of debiting foreign exchange bids to the 1st plaintiff’s account as usual the defendant used this account to transact fraudulent debits as follows:..

In answer to the above averments, the appellant averred in paragraph 16 of the statement of defence and counter-claim thus:

“Paragraph 11(59 -60) is admitted to the extent of creating the said accounts. However, the defendant denies creating those accounts without the authority, since the 6th plaintiff requested this to be done in order to further hide the foreign exchange dealings from the Central Bank of Nigeria officials who make occasional checks on forex accounts of applicants.”

In his evidence at the trial, the 6th respondent who testified as PW1 denied that he authorise the appellant to open such account. He specifically said that he did not authorised Mr. E. O. Ntui to open the accounts and that certain amounts were debited in the accounts without the authority of the respondents. Under cross examination, 6th respondent asserted that they (meaning the defendant and Mr. E. O. Ntui) had no mandate to open the account. Of significance is the evidence of DW2 who in his evidence-in-chief after identifying Exhibits 12 and 12A, the statements of account of the two companies in question, had this to say:

“Those two companies have no account with the Bank. I called the 6th plaintiff and intimated him of the CBN impending visit and requirements. He instructed me to open the two accounts since they have already bided for foreign exchange and to pass all foreign exchange he enjoyed through these accounts. This will enable me to produce a statement of account in respect of the two companies and other companies. The accounts were opened. All that transaction in foreign exchange were passed with the account.

It was duly (sic) authorised to save the situation.”

Under cross examination, DW2 said that the instruction from the 6th plaintiff was verbal. After the appraisal and evaluation of the evidence thus given the learned trial Judge in his judgment at page 160 of the Record of Proceedings state as follows:

“I hold the view that the 1st plaintiff did not authorise the opening of the said accounts. It is also my view that such authorisation should be in writing and not verbally. The two accounts were never operated by the 1st or the 6th plaintiff but operated by Mr. E. O. Ntui, the Branch Manager of the defendant Bank.”

For myself, I find it difficult to impeach the above findings of the learned trial Judge in view of the evidence before him. I hold the view that he was entitled to come to the conclusions he reached after his appraisal and evaluation of the evidence before him. Mr. E. O. Ntui, the DW2 admitted opening and operating the two accounts in question. On the question of authorisation by the 6th plaintiff/respondent which was disputed by the said 6th respondent, the learned trial Judge was of the view that such authorisation should be in writing and not orally, and I totally agree with him having regard to the fact that a matter of that serious magnitude as stated by DW2 which involved the opening of new accounts should be authorized in writing and not verbally. It is the law that unless the finding of fact by a trial court is wrong or perverse or is not supported by the evidence, the Court of Appeal has no right to reverse it. See Sobakin v. The State (1981) 5 SC 75 at 78; Okafor v. Idigo (1984) 1 SCNLR 481 (1984) 6 SC 1. In Bakare v. The State (1987) 1 NWLR (Pt.52) 579 the Supreme Court held that the duty or role of the trial court is to try the issue, evaluate the evidence and make findings of fact, come to a conclusion one way or the other dictated by the natural drift of evidence and the probabilities of the case.

In Akinloye & Anor. v. Eyiyola & Ors. (1968) NMLR 92 at 95, Coker, J.S.C delivering the judgment of the court stated at page 95 thus:

“Where a court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of Appeal to substitute its own views for the views of the trial court.”

Since in my opinion the findings of the learned trial Judge are not perverse or unjustifiable, it is not my business to over-rule those findings and substitute my own views for those of the learned trial Judge. This ground of complaint has no merit and it hereby fails.

On issue No.ii (b) above, the complaint is against the finding by the learned trial Judge that the sum of N127,623,809.69 was falsely and fraudulently and without any authorisation withdrawn by the appellant from the account of the 1st respondent and the order of the learned trial Judge that the said sum of N127 million be credited in the account of the 1st respondent. The learned senior counsel for the appellant has attacked this finding and order of the learned trial Judge on two main grounds.

The first attack comes to this:

That while in paragraph 6 of the statement of claim the respondents averred that various sums of money amounting to N127,623,809.69 were, between May, 1995 and December, 1995, falsely and fraudulently and without any prior authorisation of the 1st respondent debited to the 1st respondent’s account No. 10044-001 by the appellant, yet in paragraph 7 of the said statement of claim the respondents in another breath also averred that the amounts so falsely and fraudulently withdrawn by the appellant consisted of Monies paid into account No. 10044-001 of the 1st respondent on various dates amounting to N127,623,809.69. The learned senior counsel for the appellant therefore submitted that on the pleadings in paragraphs 6 and 7 of the statement of claim, the respondent suffered no loss or damage to necessitate or justify the order of the learned trial Judge that the sum of N127 million be credited in the account of the 1st respondent. He also contended that even on the evidence of PW1 (the 6th respondent) and that of the DW1 and DW2 there is nothing false and/or fraudulent for a Bank to wrongfully debit a customer’s account with a specific sum but later recredited that account with the same amount previously debited, more so all within the same period. He submitted that the totality of the evidence was that the accounts were moved around but without any loss to either side in respect of the said N127 million.

The second ground of attack by the senior counsel is that the reliefs claimed by the respondent in the suit as set out in that statement of claim at pages 48 and 49 of the Record of Appeal did not seek any such redress that the sum of N127 million be credited to the account of the 1st respondent as ordered by the learned trial Judge. It was his submission that a court cannot award to a party a relief such a party has not claimed in the suit and he cited Fadlallah v. Arewa Mills Ltd. (1997) 8 NWLR (pt.518) 546 (1997) 7 SCNJ 202 at page 213; Ekpenyong & Ors. Nyong & Ors (1975) 9 NSCC 28 at 32 to 32 or (1975) 2 SC 71 at 80 to 81.

The learned counsel for the respondents in his own argument started by attacking paragraph 8 of the statement of defence as being evasive. He contended that the appellant evasively in paragraph 8 of the statement of defence, answered the averments in paragraph 6 of the statement of claim, and such a general traverse is not enough to controvert material and essentially important averments in the statement of claim which must be specifically denied. He cited L.C.C v. Ogunbiyi (1969) All NLR 297 at 299; FCDA v. Naibi (1990) 3 NWLR (Pt.138) 270 at 272. He also cited the case of Lewis & Peat Ltd. v. Akhimien (1976) 7 SC 157 at 163-164 to the same effect. The learned Counsel asserted that the respondents’ case was that the appellant had operated their accounts without the authorisation, and this was admitted by the appellant’s Manager. He therefore submitted that a Bank has no right to operate a customer’s account and if the Bank does so it is liable in damages and all the debits made in the course of such unlawful operation would be ordered to be reversed as was ordered by the learned trial Judge in the instant case. With the greatest respect, I am not persuaded by the argument of the learned counsel for the respondents.

In law, it is both elementary and fundamental that issues before the court are decided on the pleadings of the parties. See Wiri & Ors. v. Wuche & Ors (1980) 1-2 SC 1 at 5; Ransome Kuti v. A.G. of the Federation & ors (1985) 2 NWLR (pt. 6) 211 at 245. In paragraphs 6 and 7 of the statement of claim the respondents pleaded as follows:

“6. On various dates between May, 1995 and December, 1995 without the prior or any authorisation of the 1st plaintiff the defendant falsely and fraudulently debited Account No. 10044-001 of the 1st plaintiff with various sums of money as follows:

(a) 2/5/95 N17,732,084.28

(b) 2/6/95 N16,407,930.83

(c) 3/7/95 N14,974,222.18

(d) 1/8/95 N14,892,424.95

(e) 9/8/95 N16,000,000.00

(f) 1/9/95 N16,876,161.86

(g) 3110/95 N30,740,985.61

“7. The amounts so falsely and fraudulently withdrawn by the defendant consisted of monies paid into account No. 1004-001 of the 1st plaintiff on various dates as follows:

(a) 31/5/95 N17,732,084.28

(b) 31/5/95 N16,407,930.83

(c) 30/6/95 N14,974,222.18

(d) 31/7/95 N14,892,424.95

(e) 8/8/95 N16,000,000.00

(f) 31/8/95 N16,876,161.86

(g) 29/9/95 N30,740,985.61”

In paragraph 8 of the statement of defence the appellant denied paragraphs 6 and 7 of the statement of claim and averred thus:

“Paragraphs 6 and 7 of the statement of claim are denied; and the defendant avers that the acts complained of were acts perpetuated by the 6th plaintiff in his capacity as the Chairman of the Finance Committee where the said Account No.10044-001 of the 1st plaintiff having been overdrawn as a result of unauthorized withdrawals of money and far above the limit statutorily allowed a Director of any bank either in form of overdraft or loan advances. Accounts and Balance Sheets are prepared every month and sent by the defendant to the Central Bank of Nigeria, the 6th plaintiff intimating the then Branch Manager ensured that the account was in credit by illegally moving funds of the Bank into his account and reversing same for four (4) and five (5) days later. This continued until discovered by the Management and Board (of Directors) of the defendant”.

After reading paragraph 8 of the statement of defence, I really fail to see the basis of the attack by the counsel for the respondents that this paragraph evasively answered paragraph 6 of the statement of claim. In my view, paragraph 8 of the statement of defence is neither evasive nor ambiguous. It specifically denied the averments in paragraphs 6 and 7 of the statement of claim and went further to set out the details of the appellant’s case which are opposed to the case pleaded by respondents. Therefore, paragraph 8 of the statement of defence constitutes a sufficient traverse. To constitute a sufficient traverse it is not necessary that every paragraph of the statement of claim should be specifically denied. That may be done. But what is essential is that the case put forward by the defendant conflicts in material particulars with that put forward by the plaintiff and thus put the different material averments in issue. See Olaogun Ent. Ltd. v. S.J. & M. (1992) 4 NWLR (Pt.235) 361. In my view, the case of Lewis & Peat (Nig.) Ltd. v. Akhimien (1976) 7 SC 157 cited by the learned counsel for the respondents does not apply as it can easily be distinguished. The rule in Lewis & Peat (Nig.) Ltd. v. Akhimien (supra) applies only where the pleading of the defendant is ambiguous by merely not denying or admitting without saying more. But where the defendant as in the instant case after specifically denying the averment in paragraphs 6 and 7 of the Statement of Claim, the defendant went further to state its case in the Statement of Defence, the rule does not apply. See Lewis & Peat (NRI) Ltd. v. Akhimien (1976) SC 157.

Now the crucial question is whether the order of the learned trial Judge in respect of the said sum of N127,623,809.69 can be supported by this court. The learned trial Judge in his judgment at page 161 of the record of appeal ordered thus:

“It is my view which I hold that the said sum of N127 million be credited in the account of the 1st plaintiff. I deem the action of the defendant to be false and fraudulent in this regard”.

It is trite law that issues are tried as settled in the pleadings filed. In this regard I shall once again recall the pleading in paragraphs 6 and 7 of the Statement of Claim. In my view, the purport of these two paragraphs is that while in paragraph 6 of the Statement of Claim the sum of N127,623,809.69 was falsely and fraudulently withdrawn from the 1st respondent’s account No.10044-001, however in paragraph 7 the said sum of N127,623,809.69 so falsely and fraudulently withdrawn by the appellant from the 1st respondent’s account No.10044-001 was paid back or credited into the said 1st respondent’s account. It follows from the foregoing that there were corresponding debits and credits respectively of the sum of N127,623,809.69 into the 1st respondent’s account No.10044-001. In other words, while the sum of N127,623,809.69 was withdrawn from the 1st respondent’s said account, the same sum of money was subsequently paid into that account. The result therefore, is that the corresponding debits and credits cancelled out themselves and thus leaving no outstanding debit or credit. In my opinion therefore, going by the state of the pleading in paragraphs 6 and 7 of the Statement of Claim, the respondents cannot be said to have incurred any loss of funds to justify the order of the learned trial Judge that the said sum of N127 million be credited in the account of the 1st plaintiff (respondent).

Even on the evidence, the testimony of PW1 (6th respondent) supported paragraphs 6 and 7 of the Statement of Claim on the debit entries and the credit entries, even though he did not know how the debits and credits came about. It was the evidence of DW1 and DW2 who were some of the principal actors in the appellant bank that threw some light into the said debits and credits respectively amounting to N127,623,809.69. DW1 was the Assistant General Manager of the appellant. He testified that those entries of debits and credits amounting to N127.6 million were mere fictitious entries which were manipulated to favour the plaintiff by the Branch Manager of the defendant by hiding the indebtedness from the CBN and NDIC. DW2, the Branch Manager, Broad Street branch of the appellant, testified that on the issue of the N 127.6 million he was instructed by the 6th plaintiff not to allow his overdrawn position to get to the Central Bank, and so he should move funds into his (6th plaintiff) account and reverse same after preparing his returns. He further testified that the subsequent dates were their reversals of all these credit entries.

From the foregoing evidence, I hold that the finding of the learned trial Judge was not borne out by the evidence before him. The finding was perverse as it did not take into account the evidence of the corresponding credits or payments of the sum of N127,623,809.69 into the account of the 1st respondent – No. 10044-001.

As there was no proper evaluation of the evidence, this court deems it proper to interfere with that finding and re-appraise and re-evaluate the evidence. I therefore hereby find as a fact that on the foregoing evidence there was nothing to be credited into the account of the 1st respondent, since the debit and the credit entries respectively neutralized themselves. I hold that there was no proof of fraud leading to any financial benefit to the appellant, or loss to the respondents in this exercise.

Most importantly also is the question whether the said sum of N127,623,809.69 as was ordered by the learned trial Judge to be credited to the account of the 1st plaintiff/respondent was ever claimed as a relief by the respondents in their statement of claim. The answer is certainly in the negative. It has been held in a long line of decided cases that there is no power in a court to make an award or grant a relief or remedy except for what is properly claimed by a party and is sufficiently proved to be due to the party. See Ekpenyong & Ors v. Nyong & Ors (1975) 2 SC 71 at 80 to 81; Ige v. Olunloyo (1984) 1 SCNLR 158 at page 168; Hon. Justice Ademola v. Sodipo (1992) 7 SCNJ 417. In George & Ors v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117 (1963) 1 All NLR 71 at page 77, it was held that it is not the duty of the court to distribute largesse by granting unclaimed relief.

I have endeavour to construe paragraph 35(2) of the Statement of Claim and relate it to the award of N127 million made by the learned trial Judge to be credited into the 1st respondent’s account’s, but I fail to see any such relationship. The relief claimed in paragraph 35(2) of the statement of claim is vague. The law is that a relief claimed by a party in an action must be proper, precise and certain. It is not the duty of the court to go about fishing out the alleged false, fraudulent and excessive debits in order to reverse them. The relief claimed in paragraph 35(2) of the statement of claim is speculative as it is imprecise and not certain to merit any attention. The court below fell into a serious error when it granted the relief. The relief is hereby discountenanced and struck out.

I will adopt the views expressed by Iguh, J.S.C in Okoya & Ors v. Santilli & Ors (1994) 4 NWLR (pt. 338) 256 at 303 (1994) 4 SCNJ 333 at page 381, thus:

“It is not the duty of a court to endeavour by examination of the evidence to deduce what ought to be or might be the true nature of a claim by a party to a dispute and then proceed to make a declaration or finding which such a party has not specifically sought and may not in fact desire. It would be certainly improper for the court so to do unless, of course, it were prepared to order an amendment of the pleadings in which case it would be necessary to give the other party an opportunity of what would be an entirely different case.”

In my candid view, therefore, the learned trial Judge committed a serious error by ordering that the sum of N127 million be credited in the account of the 1st plaintiff/respondent when the amount was not properly claimed. This order or award being improperly made cannot stand and it is hereby set aside. This disposes of this issue.

On issue No.ii (c) regarding the unauthorised sale of the 1st and 5th respondents’ shares by the appellant, it is the contention of the learned senior counsel for the appellant that the 3rd and 6th respondents voluntarily signed the authority to sell the said shares and he referred to Exhibits ‘K’ and ‘Q’. He also referred to the evidence of the 6th respondent (PW1) at page 5 lines 11 to 15 of the record of appeal (Book No.2) where the 6th respondent testified that at the board meeting of the appellant which he attended, it was decided that the shares should be sold and he agreed that they should be sold, but he added that it was under the belief that his company was owing N64 million. The learned counsel therefore submitted that the 6th respondent was under no spell or pressure from 7th October, 1995 when the indebtedness of N64 million to the appellant was discussed at a meeting up to 26th October, 1995 when the 6th respondent expressly authorised the sale of the shares as per Exhibit ‘Q’. He also submitted that the 6th respondent is estopped from contending that there was either misrepresentation or pressure by the appellant. He cited Okoya & Ors v. Santilli (supra) and submitted that a party who is not an illiterate is bound by the contents of any document signed by such a party and the plea of non est factum would not avail him as he is deemed to understand the contents. The learned senior Advocate also submitted that it is wrong for the Court below to have decreed the sale of the shares null and void ab initio with an order for repayment of the sum of N7,162,269.00 representing the accrued dividends on the shares together with interest thereon to the respondents, when the same had by the voluntary acts of the 5th and 6th respondents been applied as part-payment of their legitimate debts owed to the appellant.

For the respondents, it was contended by their counsel that the 6th respondent was induced to surrender the share holding of the 1st and 5th respondents for sale following the misrepresentation by the appellant as to the extent of the indebtedness of the 1st and 3rd respondent to the appellant to the tune of N64,043,389.88. He argued that but for the misrepresentation of the true state of the 1st and 3rd respondents’ accounts, the shares would not have been sold. He also contended that Exhibits “K” and “Q” were products of false inducement and misrepresentation. Referring to the case of Okoya v. Santilli (supra) the learned counsel submitted that the plea of non est factum was not raised by the appellant at the lower court and did not form part of the case for the appellant. He therefore submitted that the appellant’s counsel cannot raise the plea for the first time in this court without the leave of this court duly sought and obtained.

I have considered the submissions of counsel on both sides in their briefs of argument. The dominant question here is whether the 6th respondent being the alter ego of the 1st to 4th respondents voluntarily surrendered the shares of the 1st and 5th respondents in the appellant’s bank for sale by the appellant. The word ‘voluntarily’ means ‘freely’ or ‘of one’s’ own accord’. When used in its ordinary sense, the word means ‘willingly’ or ‘without compulsion’. See Ballentine’s Law Dictionary, by William S. Anderson, Third Edition at page 1350. In Black’s Law Dictionary, Sixth Edition at page 1575, voluntarily means ‘intentional and without coercion’. The evidence of the 6th respondent (PW1) at pages 4 and 5 of the Record of appeal- No.2 is that is was at the meeting of 7/10/95 that he was given unsigned document (Exhibit ‘G’) to the effect that his indebtedness to the appellant was consolidated to over N64 million in the accounts of the 1st and 3rd respondents and he was compelled to give a list of goods as security for the debt which he did. Later he (the 6th respondent) received Exhibit ‘J’, a letter dated 16/10/95 from the appellant threatening to report him to the Board of Directors of the Bank and the regulatory authorities for appropriate action to recover the indebtedness, if by October 23, 1995 he had not reduced the estimated indebtedness of N62.5m to the authorised limit. Then he wrote Exhibit ‘K’ dated 19th October, 1995. So far, let me comment on Exhibits ‘J’ and ‘K’. As for Exhibit ‘J’, the question is, to what extent did it induce or coerce the 6th respondent to surrender the shares to the appellant for sale. For the purpose of clarity, I have to reproduce Exhibit ‘J’ hereunder thus:

“CO-OPERATIVE DEVELOPMENT BANK PLC”

SHO/CH/IBE/JGC/9/2353

October 16, 1995

Confidential

The Managing Director,

Joe Golday Company Ltd.,

225/227 Odukpani Road,

Calabar.

Attention: Elder Joseph lkpatt.

Dear Sir,

Unauthorised Loans/Advances to Joe Golday Co. Ltd., Parrotwave Communications Ltd., Watertune Nig. Ltd. and your other Companies

I refer to your letter reference No. 95/1004-1 dated October 4, 1995 and to the subsequent discussions during our meeting on Saturday, October 7,1995. I wish to confirm that your letter reference is unsatisfactory in that no immediate repayment has been made of the unauthorised loans and advances made to your various companies since our discussions on September 21,1995. Instead you have prevailed on your various Branch Managers to give you additional unauthorised loans and advances.

You have used your position as a Director of the Bank and Chairman of Finance Committee of the Bank to induce various managers to obtain these unauthorised loans and advances. If by October 23, 1995 you have not reduced your estimated indebtedness from N62.5 million as at September 30, 1995 to the authorized limit, I will have no alternative but to report your behaviour to the Board of Directors of the Bank and the regulatory authorities for them to take appropriate action to recover the indebtedness”. (Italics mine for emphasis.)

The language of Exhibit ‘J’ is very clear. In my view Exhibit ‘J’ has to be read as a whole and not disjointedly in order to appreciate whether Exhibit ‘J’ was meant to induce, pressurise or force the 6th respondent to surrender the shares for sale.

I have read Exhibit ‘J’ over and over again and I do not believe that the purpose and intendment of Exhibit ‘J’ was to induce or exert pressure on the 6th respondent to surrender the shares to the appellant for sale. It is obvious that Exhibit ‘J’ did not make any mention of the shares let alone suggest their surrender for sale. In my considered view Exhibit ‘J’ was intended not only to stop the 6th respondent from securing further unauthorised loans and advances from the various appellant’s bank managers, but also to make the 6th respondent repay the unauthorised outstanding indebtedness to the appellant. It is not unusual for a bank to pressurise its customers to pay their debts. The 6th respondent’s reply – to Exhibit ‘J’ is by a letter, Exhibit ‘K’, dated 19/10/95, which in part reads:

“I am aware as you are trading that activities in Nigeria is (sic) at its (sic) lowest ebb and that the markets are not moving. To this end, I would not want to make a promise to the effect that I will immediately dispose of the goods and collapse the facilities within the time limit given to me and my companies. The only option I have for now to reduce the pressure on you and other colleague on the Board is to tender the shares of –

(1) Joe Golday Co., Ltd. 4,468,318 shares:

(2) S. Anene, 3,489,743 shares in the Bank for immediate sale to any person you may wish to bring into the company at a competitive price. Should you need my assistance to scout for a buyer, I shall be willing to do so with all pleasure.

Secondly, I surrender my 1993/1994 dividend due from the company towards further reducing the facility.”

(Italics mine for emphasis)

The language of Exhibit ‘K’ is also clear and unambiguous like in Exhibit ‘I’. One should not import or read into these two documents extraneous factors such as of coercion, intimidation or pressure which are not there and not intended by the writers or parties. In my candid opinion the 6th respondent wrote Exhibit ‘K’ with all pleasure and voluntarily offered as the only option the surrender and sale of the shares of the 1st and 5th respondents, in view of the dwindling trading activities at the time.

As a matter of fact, in Exhibit ‘K’ the 6th respondent did not express any pressure on himself, rather as he stated that the opinion was to reduce the pressure on the appellant’s Chairman and other colleague on the Board of the appellant. Again, the question is whether Exhibit ‘K’ was written under duress so as to invoke the plea of non est factum?. The answer is No. The respondent did not plead it in their statement of claim and no evidence was adduced to that effect. In law the plea of non est factum which is a shield and not sword must be pleaded by the party who relies on it and if not pleaded the court will not entertain any evidence on it. Also in Exhibit ‘Q’, a letter dated 26/10/95, and signed by the 5th and 6th respondents, there is that express authority to the appellant to sell the shares of the 1st and 5th respondents in the appellant bank and whether the shares were sold at N4.50 per share or not, does not in my view invalidate or revoke the authority given by the 5th and 6th respondents. There is no evidence that the authority given in Exhibit ‘Q’ was withdrawn or revoked at any stage prior to the sale. What was being questioned by the 6th respondent in Exhibit ‘V’ was the basis for the evaluation of the sale price of the shares at N3.50 per share and not the sale. Exhibit ‘W’ is an acceptance of the sale.

In my view, the question of under-selling the shares or their improper transfer after sale is a different kettle of fish altogether. Indeed, the respondents cannot approbate and reprobate. After they had voluntarily surrendered the shares for sale in order to knock down their indebtedness to the appellant, they cannot now be heard to assert that they did so under pressure exerted on them by the appellant, without any scintilla of credible evidence. The learned trial Judge did not properly evaluate the evidence on the issue. In my view therefore the learned trial Judge was grossly in error in his judgment when he set aside the sale of the shares as void ab initio and thereby ordering the restoration or reversion of the said shares to the 1st and 5th respondents. Since the orders of the learned trial Judge were made without proper evaluation of the evidence, I have a duty to revoke and set aside the orders and I hereby set the same aside. I confirm as valid the sale of the shares.

Consequently, I set aside the order of the learned trial Judge for payment over to the 1st and 5th respondents the sum of N7,162,264.90 and interest being dividends due to the 1st and 5th respondents for the year 1995. To be entitled to the repayment of the dividends, the respondents must prove that they are not owing the appellant any money in excess of the dividends, but they have failed to do so.

I now come to Issue No.ii (d) on the unilateral or unauthorised consolidation of accounts of the 1st and 3rd respondents by the appellant in respect of the unauthorised loans/advances to the 6th respondent’s companies amounting to N64,043,389.88 as show in Exhibit G.

In his judgment, the learned trial Judge declared as null and void the consolidation of the accounts of the 1st and 3rd respondents by the appellant without the prior or any lawful authorisation of the respondents. The appellant has complained against this decision, and insisted that there was no consolidation of the accounts. In the view of the appellant’s counsel consolidation of accounts will only arise where the separate identities of various accounts have been extinguished and merged into one composite account, creating thereby a new and single entity. To him in the instant case, in so far as the accounts are individually still running, there was no consolidation of the accounts. He referred to the testimony of DW1 and cited the Allied Bank Ltd. v. Akubueze (1997) 6 NWLR (Pt.509) 374 on the right of a Banker to consolidate a customer’s account.

In the respondents’ brief of argument, the learned counsel submitted that the extraction and addition of the balances outstanding on a particular date in all the accounts by the appellant amounted to a consolidation. He contended that it was not shown that the various accounts from which the outstanding balances were added together were in the name of the 1st respondent, or were trust accounts on behalf of 1st respondent. He submitted that the 1st to 4th respondents are distinct juristic personalities having been registered in accordance with the Companies and Allied Matters Act 1990 and each of them kept a distinct account in its own name and not in the name of the 1st respondent. He therefore submitted that the appellant had no authority to combine or sum up the oustanding balances in the other customers’ accounts with the account of the 1st respondent. He also referred to Allied Bank Ltd. v. Akubueze (supra) and submitted that the case is only applicable where such other accounts are kept by such a customer in his own right. He further referred to Uba v. U.B.N. Plc (1995) 7 NWLR (Pt.405) 72 at page 80; Halsbury’s Laws of England Vol. 2, 3rd Edition, page 172 at paragraph 322; British and French Bank Ltd. v. Opaleye (1962) 1 SCNLR (1962) 1 All NLR 26. The learned counsel therefore urged his court to uphold the lower court’s decision that the consolidation or combination of the accounts by the appellant was null and void.

The pertinent question is whether there was consolidation of accounts of the 1st and 3rd respondents and if so, whether the said consolidation was proper in law. The general principle of law as to whether a banker has the right to consolidate or combine customer’s accounts is that unless precluded by agreement, express or implied from the course of business, a banker is entitled to combine current accounts kept by a customer in his own right; even though at different branches of the same bank, and to treat the balances, if any, as the only amount standing to the customer’s credit. However, the customer has not the equivalent right, and cannot utilise a credit balance at one branch for the purpose of drawing cheques on another branch where he has no account or where his account is overdrawn. See Halsbury’s Laws of England, Third Edition, Volume 2 paragraph 322 at pages 172 to 173. In British & French Bank Ltd. v. Opaleye (1962) 1 All NLR 26 at 28 or (1962) 1 SCNLR 60 at page 80 the Federal Supreme Court restated and followed the principle of law enunciated above. In that case, the respondent (Opaleye) had two accounts with the appellant bank, one in his own name and the other, a business account in the name of “Fekemo Brothers” of which he was the sole account holder.

The private account was in credit under ?2 (N4) and the business account was overdrawn to the extent of ?500 (N1000), when a cheque for ?350 (N700) was paid into the private account. The bank thereupon without notice to or the consent of the respondent utilised the credit of the private account to reduce the overdraft of the business account, and told the respondent that he could not draw on his private account. The respondent sued the appellant Bank in the Magistrate Court for damages and obtained judgment. The appellant appealed to the High Court which dismissed the appeal. Thereupon the appellant appealed to the Federal Supreme Court which also dismissed the appeal and held that where a banker opens two accounts with a customer, one in the customer’s own name and the other in a business name, there is, in the absence of any express agreement to the contrary, an implied agreement that the accounts are to be kept distinct and separate. It also held that where by agreement, express or implied, a customer’s several accounts with the banker are to be kept distinct and separate, the banker has no right to combine them or to transfer assets or liabilities from one account to another, without reasonable notice of the intention so to do, or without the assent of the customer. Since the decision in Opaleye’s case (supra) which is a locus classicus there have been other decisions of the courts to the same tenor and effect. See Uba v. Union Bank of Nigeria Plc (1995) NWLR (Pt.405) 72 (CA); Allied Bank (Nig) Ltd. v. Akubueze (1997) 6 NWLR (Pt.509) 374 (SC)

To my mind the learned counsel for the appellant has a misconception about the meaning of the term ‘consolidation of accounts’. The term ‘Consolidation of account’ means the same thing as combination of accounts. It arises only if a customer of a bank operates two or more accounts in his own right. In such a situation the bank is entitled to combine the two or more accounts kept by the customers, even though at different branches of the same bank, and to treat the balance, if any, as the only amount really standing in the customer’s credit, unless precluded by agreement, express or implied from the course of business from so doing. The learned counsel for the respondents was right when he stated that the extraction and addition of the balances outstanding on a particular date in all the accounts in question by the appellant amounted to consolidation. The meaning of a customer having separate accounts ‘in his own right’ was given by Bairamian F.J.

In British & French Bank Ltd. v. Opaleye supra Bairamian F.J. gave the meaning of the phrase ‘in his own right’ when he said at [Page 28 of the report thus:

“The point about the customer having different accounts ‘in his own right’ is probably this, namely, that he has both accounts in his name, and that neither account is a trust account.”

In the instant case it is clear that the appellant combined or consolidated the accounts of the 1st and 3rd respondents in the appellant bank, from which the outstanding debit balance of over N64 million was raised. That the accounts were in the distinct and separate names of the 1st and 3rd respondents and in their own rights as distinct juristic personalities is not in dispute.

But that is not the end of the matter. One has to look at the particular circumstances of this case leading to the consolidation of the accounts complained of. The purpose of the consolidation of the accounts was to ascertain or determine the overall indebtedness of the 6th respondent’s associated companies to the appellant which the 6th respondent as the alter ego organised and manipulated to do business with the appellant. As a matter of fact it was the issue of the amount of indebtedness of the 6th respondent’s companies to the appellant that gave rise to this suit. The case of the respondents is not that they sustained any detriment, loss or damages by reason of the combination or consolidation of their accounts, such as that their cheque drawn on any of the consolidated accounts was dishonoured so as to give rise to cause of action in law. In other words, mere consolidation of the accounts of a customer by his banker to ascertain the totality of his indebtedness to the banker without his suffering any detriment, loss or damage by so doing does not give rise to cause of action against the banker. The case of British and French Bank Ltd. v. Opaleye (supra) is clearly distinguished from the facts of the instant case.

In my view therefore, it was erroneous for the learned trial Judge to declare the consolidation of the accounts of the 1st and 3rd respondents null and void. That declaration is accordingly set aside.

On issue No.ii (e) the appellant complained against the award of N1 million as general damages in favour of the respondents by the learned trial judge. The learned counsel for the appellant has contended in his brief of argument that there was neither allegation of any loss or damage or injury in the respondents’ pleadings nor was there any iota of such evidence led by the respondents in that regard throughout the trial to justify the award of such general damages. He further contended that the learned trial Judge made no attempt in his judgment to indicate the basis for the award. He therefore submitted that it was a serious misconception of the law on the part of the trial Judge to make the award. The learned counsel further submitted that having granted the respondents the reliefs the court found proved, the further award of yet another head of redress as general damages amounted to double compensation which is not permissible in law. The learned counsel cited the following authorities; Beecham Group Ltd. v. Essdee Food Products Nig. Ltd. (1985) 3 NWLR (Pt.11) 112, A.G. Oyo State v. Fairlakes Hotels Ltd. (No.2) (1989) 5 NWLR (Pt.121) 255 at page 278; Kaycee (Nig.) Ltd. v. Prompt Shipping Corps. Ltd. (1986) 3 NWLR (pt.23) 458.  For the respondents it was argued by counsel that they are entitled to be compensated by way of general damages as such damages are presumed by law to be the direct, natural or probable consequences of the act of the appellant. He referred to the evidence before the lower court and itemised the issues suffered by the respondents which ought to be compensated by way of general damages, to wit: the 1st respondent lost its directorship with the appellant when the 6th respondent resigned his directorship, the 1st and 5th respondents lost their shares which were sold due to fraudulent misrepresentation by the appellant, the 6th respondent lost ownership of his house at No. 82 Norman William Street, Ikoyi, Lagos, as the property was also sold. The learned counsel referred to U.B.N. Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (pt.421) 558 at page 566 ratio 14;  Ijebu-Ode L.G. v. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Pt. 166) 136 (1991) 22 NSCC (Pt.1) 1 at page 4, ratio 7; A.G. Oyo State v. Fairlakes Hotel Ltd. (1989) 5 NWLR (Pt.121) 255 at 278. The learned Counsel rejected the idea that the award of N1 million as general damages amounted to double compensation and urged this Court to uphold the award in favour of the respondents.

It is trite law that general damages are such damages as the law will presume to be the natural or probable consequences of the act complained of. See Beecham Group Ltd. v. Essdee Food Products Nig. Ltd. (1985) 3 NWLR (pt.11) 112; Mobil Oil Nig. Ltd. v. Akinfosile (1969) 1 NMLR 217. In a claim for general damages,the damages are at large and the trial court even without any figure being claimed can award proper compensation. See Balogun v. Amubikanhun (1985) 3 NWLR (pt.11) 27.  The general principle of law established by a long line of decided cases is that an award of general damages is a matter for the trial Judge and an appellate Court will not interfere with such award unless it is shown that the trial Judge had proceeded upon a wrong principle of law or that his award was clearly an erroneous estimate since the amount was manifestly too much or too small. See U.B.A. Ltd. & Anor. v. Achoru (1987) 1 NWLR (Pt.48) 172; Nzeribe v. Dave Eng. Co. Ltd. (1994) 8 NWLR (Pt.361) 124; U.B.N. Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt.421) 558; Onwu v. Nka (1996) 7 NWLR (Pt. 458) 1 (1996) 6 SCNJ 240.

Now, after a careful consideration of the submissions of counsel on both sides, I am of the strong view that this court will interfere with the award of general damages by the learned trial Judge, having regard to the fact that in this court the respondents have virtually lost all their claims before the lower court. Therefore, the respondents have not suffered any damages which the law would presume to flow in their favour and deserving of compensation. In the circumstances therefore, I hereby set aside the award of the sum of N1 million as general damages to the respondents.

Issue No.iii is in respect of the counter-claim by the appellant. I have earlier in this judgment set out the counter-claim. At page 162 of the record of appeal, (Record Book No.1) the learned trial Judge dismissed the counter-claim on the ground that “since the alleged overdraft is still disputed by the plaintiffs and the defendant what is the basis of counter-claiming for the sum of N18,249,848.88. I hold that the defendant led no evidence to prove the counter-claim. In his testimony, DW1 at page 25 of the Supplementary Record of Appeal No.2 counterclaimed for about N18 million against the respondents. He identified Exhibit 3 and pinned down the counter-claim to N13 million and not N18 million as previously claimed. (The figure N18 million at page 25 line 23 is a typographical error for N13 million. See Record of Appeal No.1 at page 135 lines 5 and 6.) Exhibit ‘3’ is a letter dated 9/12/96 from the appellant to the 6th respondent stating the indebtedness of the 1st respondent and associated companies as at 30th September, 1996 to be N17,155,179.00 and requested for the 6th respondent’s cheque in full settlement of the amount.

In Exhibit ‘3’ the appellant stated clearly that the sale of the 6th respondent’s property at Norman William Street Lagos had not been reflected in Exhibit 3. It will be recalled that the 6th respondent as PW1 in his evidence at page 7 lines 27 to 31 of Record of Appeal Book No.1 stated that the said property was sold for N8 million and that the appellant retained N5 million, while N3 million went to agency and transfer of title documents. When, therefore, this sum of N5 million retained by the appellant is taken into account and deducted from the sum of N17,155,179 in Exhibit 3 claimed by the appellant, the outstanding balance of the respondents indebtedness to the appellant is reduced to N12,155,179. The 6th respondent, in my opinion betrayed himself when in his evidence at page 13 lines 33 to 34 of Record Book No.2 he stated that, “there is no doubt that we are owing the amount. The Central Bank said that we were owing N34 million”, only to turn round in his evidence at page 14 of Record Book No.2 to say that, “it is not correct that I am owing Bank”. The 6th respondent cannot approbate and reprobate. The fact remains that the latter statement is an after thought and therefore false. It is argued by the learned counsel for the respondents in his brief that the appellant could not alter the amount claimed without amending the statement of defence and counterclaim with the leave of the trial court. I do not agree. An amendment of the counter-claim was not necessary for the Court below to grant the appellant the sum of N12,155,179 proved as the counter-claim.

In law, a court has power to give to a plaintiff judgment for whatever part of his claim which he proves or is admitted. See National Bank of Nig. Ltd. v. Guthrie Nig. Ltd. & Anor. (1987) 2 NWLR (pt.56) 255. Therefore the learned trial Judge was in serious error when he dismissed this arm of the counter-claim as not proved.

That decision is hereby set aside. The counter- claim hereby succeeds to the extent of N12,155,179 borne out by evidence. It is hereby adjudged that the respondent shall pay to appellant the sum of N12,155,179 as counter-claim in settlement of the outstanding indebtedness to the appellant.

The last issue for the determination of this appeal is the issue of the jurisdiction of the lower court to entertain the suit, which is argued under issue No.IV. This issue is derived from ground five of the additional grounds of appeal. The main thrust of the argument of the learned senior Advocate in the appellant’s brief of argument is that the Federal High Court, Calabar had no jurisdiction to entertain the suit. He submitted that by paragraph 1 to 5 of the statement of claim, the respondents sued the appellant in their capacities as customers maintaining various accounts with the appellant, which accounts were falsely and fraudulently operated without their authority by the appellant. He also referred to the cause of action and the reliefs sought in the suit. He contended that the reliefs sought show that all the respondents including the 6th respondent conceived their suit attacking the appellant from outside its composition and operations as a limited liability company duly registered under the provisions of the Companies and Allied Matters Act 1990. In essence the argument of the learned counsel is that the claim of the respondent as constituted arose from a dispute between individual customers (irrespective of whether it is a limited liability company or a living person) and their bank (the appellant) and in respect of transactions between those individual customers and their bank (the appellant) and by the proviso under section 230 (1)(d) of the Constitution (Suspension and Modification) Decree No. 107 of 1993, the Federal High Court lacked jurisdiction to entertain or adjudicate over the suit as constituted. He contended that once it is established that the Federal High Court has no jurisdiction to entertain reliefs No.1 to 6, the court was bound to decline jurisdiction to adjudicate on relief No. 7 which is only peripheral to the main reliefs namely Nos.1 to 6. He referred to Egbuonu v. Bornu Radio Tel.Corp. (1997) 12 NWLR (pt.531) 29 where the Supreme Court held that where a court lacks jurisdiction to entertain the main claim but has jurisdiction over the ancillary or incidental claim, the court ought in such circumstances to decline jurisdiction to hear the suit. The learned counsel submitted that the prohibition in the proviso to section 230(1) of Decree No. 107 of 1993 prevails, the effect of which is to oust the court’s jurisdiction to adjudicate over the complaints raised in the suit and cited First Bank of Nigeria Plc v. Jimiko Farms Ltd. (1997) 5 NWLR (Pt.503) 81.

Finally, the learned senior counsel submitted that although the objection to jurisdiction was not raised at the trial, but on the authorities that trial court on the evidence before it ought to have struck out the suit for lack of jurisdiction.

On the other hand, the learned counsel for the respondents submitted that the meaning of the proviso in section 230(1)(d) of the Constitution (Suspension and Modification) Decree No. 107 of 1993 is that the jurisdiction of the Federal High Court to entertain suits between an individual customer and his bank is not exclusive but concurrent with other courts, however in respect of all other matters specified in the section the Federal High Court has exclusive jurisdiction to entertain such matters. He opined that the lower court had jurisdiction to entertain the claim of the respondents and cited Yalaju-Amaye v. A.R.E Contractors Ltd. (1990) 4 NWLR (pt.145) 422 at page 430 ratio 20. The learned counsel intended that the case of First Bank of Nig. Plc. v. Jimiko Farms (supra) cited by the learned counsel for the appellant does not apply because the issues in that case bothered on whether the State High Court had jurisdiction to entertain a claim under the provisions of Section 230(1)(e) of Decree No. 107 of 1993. Finally, the learned counsel for the respondents said that assuming but not conceding that the lower court had no jurisdiction to entertain some of the claims (i.e. reliefs Nos. 1, 2 and 5) the option open to it in the circumstances was to strike out those reliefs and proceed to determine those for which it had jurisdiction and cited Williams v. Nwosu (1994) 3 NWLR (pt.331) 156 at 164 ratio 8. This issue of jurisdiction was raised for the first time in this court and the learned counsel for the respondents rightly in my view did not object to it. It is settled law that jurisdiction which is the power of the court to adjudicate over an action can be raised at any stage of the proceedings even at an appeal stage in the Court of Appeal or in the Supreme Court.

Section 230(1)(d) of the Constitution (Suspension and Modification) Decree No.107 of 1993 provides as follows:

“Notwithstanding anything to the contrary contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion to (sic) and other court in civil cause and matters arising from:

(a) …………………………………..

(b) …………………………………..

(c) ……………………………………

(d) Banking, banks, other financial institutions, including any action between one bank and other, any action by or against the Central Bank of Nigeria arising from banking, foreign Exchange, coinage, Legal tender, bill of Exchange, letter or credit, promissory note and other fiscal measures;

Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank.”

It is settled law that in order to ascertain whether or not a court has jurisdiction to entertain a case, one only needs to look at the plaintiff’s claim. This is because it is a fundamental principle of law that it is the claim of the plaintiff that determines the jurisdiction of the court entertaining the suit. See Izenkwe v. Nnadozie (1953) 14 WACA 361; Adeyemi v. Opeyori (1976) 9-10 SC 31; Turkur v. Govt. of Gongola State (1989) 4 NWLR (Pt.117) 517; Mattaradona v.Ahu (1995) 8 NWLR (Pt.412) 225; First Bank of Nigeria Plc v. Jimiko Farms Ltd. & Anor. (1997) 5 NWLR (pt.503) 81. It is not disputed in this case that the 1st to 4th respondents are individual customers of the appellant. The 1st respondent also double as share holder with 4,468,318 shares in the appellant bank. The 5th respondent was also a share holder with 3,489,743 shares in the appellant bank. The 6th respondent was a Director cum Chairman of the Finance Committee of the appellant bank. The reliefs claimed in the Statement of Claim pertain to matters relating to false and fraudulent keeping of the accounts of the 1st to 4th respondents by the appellant; the restoration of the shares of the 1st and 5th respondents sold by the appellant; and payment of the dividends and interests accruing from those shares in 1995, and the restoration of the 6th plaintiff as a Director in the appellant bank.

Undoubtedly, the claims relating to the shares and dividends and restoration of the 6th respondent as a Director are matters within the jurisdiction of the Federal High court by virtue of the provisions of the Companies and Allied Matters Act 1990. As regards the claim relating to the accounts of the 1st to 4th respondents, I am of the view that it is a dispute between the 1st and 4th respondents as customers of the appellant bank and the appellant in respect of transactions within the proviso to section 230(1)(d) of Decree No.107 of 1993. In this respect, it is my view that the jurisdiction of the Federal High Court is not exclusive but is concurrent with that of the State High Court. The proviso in Section 230(1)(d) of the Constitution (Suspension and Modification) Decree No.107 of 1993 cannot be interpreted to have the effect of cutting down the jurisdiction conferred on the Federal High Court under the Section beyond what compliance with the proviso renders necessary. See N.D.I.C. v. F.M.B. (1997) 2 NWLR (Pt.490) 735.

In that case, the Court of Appeal was construing the proviso in section 230(1)(d) of the 1979 Constitution as amended by Decree No. 107 of 1993 which is applicable to the instant case and held that the proviso has the following four- fold ramifications:

(a) That the State High Court shall have jurisdiction in the circumstances indicated in the proviso;

(b) That the Federal High Court shall not have exclusive jurisdiction, as given to it under the main Section, when it comes to matters falling within the circumstances of the proviso;

(c) That the fact the Federal High Court’s exclusive jurisdiction in section 230(1)(d) shall not apply to matters falling within the circumstances of the proviso does not entirely remove jurisdiction therein from the Federal High Court; and

(d) That both the Federal High Court and the State High Court have and can exercise concurrent jurisdiction in such circumstances.

In the circumstances therefore, the contention on jurisdiction by the learned counsel for the appellant is misconceived. The issue hereby fails.

In the final result therefore, the appeal is partly allowed and partly dismissed. Accordingly, for the allowed part of the appeal, the following orders of the trial Court are hereby set aside:

1. The order crediting the sum of N127 million in the account of the 1st respondent is set aside.
2. The order setting aside the sale of the shares of the 1st and 5th respondents and the order for their restoration or reversion to the 1st and 5th respondents are set aside.
3. The order for the payment over to the 1st and 5th respondents the sum of N7,162,246.90 and interests being dividends due to the 1st and 5th respondents for the year 1995 is set aside.
4. The award of N1 million general damages is set aside.
5. The order dismissing the counter-claim is set aside. In its place the counter-claim for N12,155,179 is hereby allowed.
6. The order declaring the consolidation of the 1st and 2nd respondents null and void is set aside.

On the other hand appeal is dismissed in the following issues:

1. Allegation against the 6th respondent of breach of the provisions of section 18(3) and (9) of Decree No. 25 of 1991.
2. Unauthorised opening of two new accounts in the names of Hillman (Nig.) Ltd. and Stellfurn (Nig.) Ltd.
3. Issue of jurisdiction of the Federal High Court, Calabar. There shall be costs of this appeal which I assess at N5,000.00 to the appellant.

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Other Citations:(2000)LCN/0758(CA)