E.D. Tsokwa & Sons Company Ltd. V. Union Bank Of (Nig.) Ltd. (1996)

LAWGLOBAL HUB Lead Judgment Report

WALI, J.S.C. 

The claims of the appellant as set out in his Amended Statement of Claim are as follows:-

“(1) A declaration of the court that the plaintiff is not indebted to the first defendant to the sum of N736,812.29 as at 31st March, 1983.

(2) A declaration that the defendants were in error when they charged/debited the plaintiff’s account with interest of N117,939.91 – calculated on disputed sum/debt from 5/6/81 to 3/3/83.

(3) A declaration of the court of the actual financial position of the plaintiff at the defendants’ branch Gboko.

(4) An order of the court compelling the defendants to rectify their books of accounts to reflect the actual indebtedness of the plaintiff as at 31st March, 1983.”

The respondent in answer to the Amended Statement of Claim filed an Amended Statement of Defence in which the crucial averments in the said Amended Statement of Claim were denied.

After pleading were settled, the case went to trial in which each side called witnesses to prove the averments in his pleading. Learned counsel for both the appellant and the respondent addressed the court to buttress the cases they presented and thereafter the learned Judge adjourned the case for judgment. In his reserved judgment delivered on 20th March, 1986, the learned trial Judge found in favour of the appellant as follows:-

“In the light of the above I hold that the plaintiff have proved quite substantial part of their claim on a balance of probability. They are entitled to judgment. I therefore grant a declaration that the plaintiffs are not indebted to the defendants in the sum of N736,812.29 as at 31st March, 1983. I found as a fact that the plaintiffs are indebted to the defendants in the sum of N116,717.00. How I arrived at this figure are carefully set out above.

2. I further declare that the defendants can only calculate interest on the debt of N116,717.00.
3. The defendants are hereby ordered to rectify their books of account to reflect the findings of the court.”

Dissatisfied with the judgment of the trial court, the respondent [then as appellant] appealed against it to the Court of Appeal. At the end of the exercise before it the Court of Appeal unanimously allowed the appeal in part. Adio JCA [as he then was] delivered the judgment of the court in which he concluded:-

“In the circumstance, this court affirms the declaration granted by the trial court to the respondents that they were not indebted to the appellants in the sum of N736,812.29k as at 31st March, 1983, and the order made by the trial court requiring the appellants to rectify their books of account to reflect the findings of the court. The finding of the trial court that the respondents were indebted to the appellant in the sum of N116,717.00 and its declaration that the appellants could only calculate interest on the debt of N116,717 .00 are hereby substituted with a declaration that the respondents are indebted to the appellants in the sum of N456,717.00 as at 31st March, 1983 and a further declaration that the appellants are entitled to calculate interest on only the aforesaid debt of N456.717 respectively. The declarations and the order of the trial court, as modified or varied in the manner mentioned above, are or should be as follows:-

1. The plaintiffs/respondents are granted a declaration that they were not indebted to the defendants/respondents in the sum of N736,812.29k as at 31st March, 1983.
2. The plaintiffs/respondents are granted a declaration that they were indebted to the defendants/appellants in the sum of N456,717.00 as at 31st March, 1983.
3. The plaintiffs/respondents are granted a declaration that the defendants/appellants are entitled to calculate interest on only the aforesaid debt of N456,717 .00.
4. The defendants/appellants are hereby ordered to rectify their books of account to reflect the judgment.”

Aggrieved by the Court of Appeal decision, the plaintiff as appellant and the defendant as respondent filed appeal and Cross – appeal respectively to this Court.

I deem it pertinent at this stage to state in brief, the facts involved in this case which are as follows-

The appellants were bankers while the respondents were their customers at the Gboko branch of the appellants in which they had current accounts. The appellants were operating the current accounts for the purpose of and in connection with their business. In the process, the appellants paid several cheques into the accounts and also withdrew large sums of money, with the connivance of the respondent’s manager to the equivalent of the sums to which the cheques were related in most cases. Some of the aforesaid cheques paid into these accounts and against which the appellants withdrew money were lost and, therefore, not presented to the banks on which they were drawn. The loss of these cheques was not brought to the appellant’s notice. As a result, he sought for declaration stated in paragraphs 18(1), (2) (3) and (4) of the Amended Statement of Claim [supra].