Ferdinand George Vs The United Bank For Africa Ltd (1972)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C. 

In Suit No. K/64/1967, the plaintiffs in the Kano High Court claimed in their writ as follows:-

“The plaintiffs claim against the defendant is:-

1. for the sum of 21,178.9.11d (pounds) being money payable by the defendant to the plaintiffs for money lent by the plaintiffs to the defendant and for money paid by the plaintiffs for the defendant as bankers and agents for the defendant at his request and for interest upon money due from the defendant to the plaintiffs and foreborne at interest by the plaintiffs to the defendant at his request and for bank charges, full particulars of all of which are contained in the affidavit in support hereof; and
2. for compound interest on the said sum of 21,178.9.11d (pounds) at the rate of eleven per centum per annum with monthly rates from the 29th June, 1967 until repayment or judgment.”

Pleadings were ordered and were duly filed and delivered.

The plaintiffs statement of claim reads:-

“1. The plaintiffs are a banking company carrying on business in Kano and elsewhere in Nigeria.

2. The plaintiffs are the successors to British and French Bank Limited who also carried on business in Kano and elsewhere in Nigeria.
3. The defendant is believed to be a merchant in Kano and resides at 24E Ado Bayero Road, Kano.
4. The defendant has a current banking account with the plaintiffs. The plaintiffs and their predecessors paid money to the defendant as bankers for the defendant at his request together with interest upon the money due from the defendant to the plaintiffs and foreborne at interest by the plaintiffs to the defendant at his request and by reason thereof the said account has been overdrawn in the sum of 21,178.99711 as at 29th June, 1967 which said sum is due and owing by the defendant to the plaintiffs.
5. Compound interest with monthly rates is presently accruing on the said sum of 21,178.9.11d (pounds) at the rate of eleven per centum per annum.
6. The defendant by letter dated 16th February, 1963, addressed to the plaintiffs admitted and acknowledged therein that he was at that date indebted under his said current banking account in the sum of 17,794(pounds).
7. Whereof the plaintiffs claim as per writ of summons.”

Paragraphs 1-3 of the amended statement of defence read:-

“1. Save as is hereinafter expressly admitted each and every allegation of fact set out in the statement of claim is denied in (sic) seriatim, as if each was denied separately.

2. The defendant admits the allegations contained in paragraphs 1 and 3 of the statement of claim.
3. With regard to the facts alleged in paragraph 4 of the statement of claim the defendant says that his banking account was not operated by him since October 1959.”

The defendant averred further in the statement of defence that he was authorised by the British and French Bank Ltd., Kano, to overdraw his current account there to a limit of 8,000(pounds) and he received advances from the said Bank but could not say precisely the amount which he drew before October 1959. He did not know whether or not he was charged any interest thereon and, if he was, how much interest he was charged. He then stated that the British and French Bank Ltd. or the plaintiffs hold a legal mortgage upon his property and that the value of the mortgaged property far exceeded any sum in which he might be indebted to the British and French Bank Ltd. or to the plaintiff.

He further stated that his legal rights and liabilities in respect of any sum which he might owe the plaintiffs or the British and French Bank Ltd. were governed by the terms of the said mortgage which constituted a bar to the action. After pleading the Statutes of Limitation as another bar to the action, he stated finally that as regards the payments alleged to have been made by the British and French Bank Ltd. or the plaintiffs after 16th October, 1967, the consideration given, if any, was past consideration.

In support of the plaintiffs’ claim, one Alastair Glynne Foulkes (plaintiffs’ 3rd witness), the Assistant Manager of the plaintiffs, testified as follows:-

“I have been with plaintiff bank for about 8 years. I came in January 1961, to join British and French Bank. In October 1961, that Bank’s assets and liabilities in Nigeria were taken over by a consortium of foreign banks, including the British and French Bank which still retained a majority share holding. A new company was formed called the United Bank for Africa Limited. The business of British and French Bank was taken over by the U.B.A. We issued what we called ‘Bridge Forms’ to all customers. I know defendant. He is a customer owing us money. He was a customer of British and French Bank since 1956. He did not sign a ‘Bridge Form’. I do not think he was sent one to sign. I see exhibit 1. It is a copy of defendant’s account with British and French Bank and with plaintiffs. When plaintiffs took over in October 1961, this account was taken into their Book.”

When cross-examined further about the take-over of the British and French Bank by the plaintiffs, the witness replied:-

“I do not agree we are acting as agents for British and French Bank. We claim this money is due to us. We are legally entitled to this money. We bought the assets and took over the liabilities.

Several banks in Europe and one in America put money together and bought the assets in Nigeria of British and French Bank. I cannot produce any documents. I cannot establish that this balance was one of the assets which we took over. I suppose there must have been a Board Meeting which covered this asset along with others. We took over the balance sheet which included this debt. British and French Bank still exists but does no direct business in Nigeria. They have shares in plaintiff Bank.

I agree exhibit 1 shows defendant himself has not operated the account since October, 1959.”

The defendant did not give evidence but only called one Anthony Dorman (1st defence witness), a chartered accountant, who testified as to the defendant’s account in the books.

At the close of the case, the learned counsel for the defendant submitted that the plaintiffs were claiming a debt due to the British and French Bank which was admitted to be a separate legal entity, that there was no power of attorney enabling the plaintiffs to sue in place of the British and French Bank, and that there was no proof of any legal or equitable assignment of the debt by the British and French Bank to the plaintiffs. For the plaintiffs, it was submitted that there was, from the documents tendered at the trial, an equitable assignment from the British and French Bank Ltd. to the plaintiffs. The court was also asked to apply the common law doctrine of novation. Finally, it was submitted that while the plaintiffs conceded that there was no ‘Bridge Form’ sent to or signed by the defendant consenting to the assignment, consent could be signified by conduct where there was novation.

In his judgment wherein the plaintiffs were awarded the amount claimed, the learned trial judge observed as follows:-

“The most interesting part of the defence is the legal argument arising out of the change of identity of the creditors. Plaintiffs say they took over all the business in Kano of the British and French Bank. No details of any assignment are proved, but on the evidence before me which the defendant has not contradicted I am satisfied that this is so.”

After considering the submissions of learned counsel for both parties with respect to the legal issues to which we have referred above, the learned trial judge, before giving judgment for the plaintiffs, finally found as follows:-

“In my view, Mr. Horn is right.Obviously where the burden of a debt is being assigned, the creditor must consent or the assignment could be used as a simple means of avoiding liability. When the benefit of a debt is assigned the debtor does not need to consent. He still owes the money which he previously borrowed, and so long as he knows whom to pay in order to get an effective receipt and discharge he has no cause to be consulted over the assignment. Here, it is quite clear on the documents signed by the defendant that he knew well that his previous indebtedness to British and French Bank (a) was still due (b) was still accruing interest and (c) was to be paid by him to plaintiffs.”

In his appeal before this court, five grounds of appeal were argued on behalf of the defendant/appellant but the only ground which mented any serious consideration reads:-

“The learned trial judge erred in law and misdirected himself upon the evidence in finding that there had been a valid assignment by British and French Bank Limited to the United Bank of Africa Ltd. of the debt claimed by the United Bank for Africa Ltd. from the defendant.”

For the defendant/appellant, Mr. Hughes’ argument may be summarised as follows. On the evidence before the court, there was no legal or equitable assignment of the loan by the British and French Bank to the plaintiffs/respondents. He referred to the evidence of the plaintiffs’ 3rd witness, the Assistant Manager of the plaintiffs/respondents, who admitted that the defendant/appellant was not sent a “Bridge Form” to sign and was therefore not given any notice of the assignment, that he could not establish that the balance of defendant/appellant’s account was one of the assets which his bank took over and who could only “suppose that there must have been a Board Meeting which covered these assets along with all the others.” Learned counsel then submitted that the action against the defendant/appellant should have been brought by the British and French Bank and not by the plaintiffs/respondents. He also referred to the letter exhibit 8 written on 16th February, 1963, about two years after the alleged assignment, which showed that the defendant/appellant was still of the view that whatever he owed was owed to the British and French Bank.

Mr. Horn who appeared for the plaintiffs/respondents contended at first that there was evidence that the plaintiffs/respondents came into being and took over the assets and liabilities of the British and French Bank. He later conceded, however, that part of their pleadings relating to the take-over was not as comprehensive as it should have been. He also conceded that the evidence in support was also not sufficient proof of the take-over and then asked that the plaintiffs/respondents’ claim should be non-suited.’

For the defendant/appellant, Mr. Hughes urged us in reply to dismiss the claim if we were of the view that the take-over had not been proved, pointing out that that could not prevent the British and French Bank who were still the creditors of the defendant/appellant from suing for the debt.

The first point to be considered in this appeal is whether the plaintiffs/ respondents pleaded the assignment by the British and French Bank to them of the debt which they had claimed from the defendant/appellant. If the assignment is not pleaded, evidence regarding it goes to no issue and should not have been admitted; if admitted, it should have been ignored by the learned trial judge in his judgment. (See George v. Dominion Flour Mills Ltd. [1963] 1 All N.L.R. 71 at pages 78-79). In this respect, we also wish to refer to our decision in Chief Sule Jimbo and others v. Amidu Asani and others, S.C. 373/67 delivered on 13th March, 1970, where we observed as follows:-

“We are also concerned at the obvious departure from their pleadings of the two sets of plaintiffs. The object of pleadings is to fix the issues for trial accurately and to apprise the other side of the case which it would meet in court. To allow a party to give evidence in direct contradiction of his pleadings is to allow that party to make a different case at the trial and should not have been allowed. Such evidence must be regarded as not belonging to the issues raised on the pleadings and should have been rejected. We think the learned judge was wrong to have allowed such evidence to be given. See Erinle v. Adelaja, S.C. 332/1966 delivered on the 6th June, 1969; also N.N.P.C. v. Thompson Organisation Ltd. and others, S.C. 192/67 delivered on the 11th April, 1969.”

Again, we refer to our decision in Ogboda v. Adulugba delivered on 12th February, 1971 where we emphasised the same point as follows:-

“We have pointed out numbers of times that the evidence in respect of matters not pleaded really goes to no issue at the trial and the court should not have allowed such evidence to be given. (See Chief Sule Jimbo and others v. Aminu and others, S.C. 373/67 delivered on 13th March, 1970). Even when such evidence had been wrongly allowed, the trial court should disregard it as irrelevant to the issues properly raised by the pleadings.”

In the instant case, the plaintiffs/respondents averred in paragraphs 1-4 of their statement of claim as follows:-

“1. The plaintiffs are a banking company carrying on business in Kano and elsewhere in Nigeria.

2. The plaintiffs are the successors to British and French Bank Ltd. who also carried on business in Kano and elsewhere in Nigeria.
3. The defendant is believed to be a merchant in Kano and resides at 24E Ado Bayero Road, Kano.
4. The defendant has a current banking account with the plaintiff.”

The defendant/appellant in his amended statement of defence, while admitting the averments in paragraphs 1 and 3 of the statement of claim, denied the averments in paragraph 2 thereof. With respect to those in paragraph 4, the defendant/appellant pointed out in paragraph 3 of his statement of defence that his banking account had not been operated by him since 1959, thereby implying that he had no current account with the plaintiffs/respondents at the time they said they took over the British and French Bank in 1961.

In our view, it is not clear from paragraph 2 of the statement of claim what sort of business the British and French Bank did in Kano and elsewhere in Nigeria or what the plaintiffs/respondents “succeeded” to. Even assuming that the British and French Bank were carrying on the business of banking in Nigeria, the averment did not show that the plaintiffs/respondents “succeeded” to all or some of their banking business, or to all or some of the assets and liabilities of the bank generally or to the debt owed to it by the defendant/appellant in particular. On the basis of their pleadings alone, the plaintiffs/ respondents did not show that they had taken over or had been assigned the assets and liabilities of the British and French Bank including the debt, if any, owed to that bank by the defendant appellant.

Even the evidence adduced, which to our mind, should not have been admitted and should have therefore been ignored, did not appear to improve the situation. In this connection, we recall the answers given to questions asked under cross-examination by Mr. Foulkes (plaintiffs’ 3rd witness) the Assistant Manager of the plaintiffs/respondents’ bank in Kano at the time of the trial. These answers are as follows:-

“Several banks in Europe and one in America put money together and bought the assets in Nigeria of British and French Bank. I cannot produce any documents. I cannot establish that this balance was one of the assets which we took over. I suppose there must have been a Board Meeting which covered this asset along with all the others. We took over the balance sheet which included this debt. British and French Bank still exists but does no direct business in Nigeria. They have shares in plaintiffs’ Bank.”

This evidence seems to suggest that a consortium of banks both in Europe and the United States of America raised money to buy up the assets of the British and French Bank in Nigeria. There is no evidence showing that it was this same consortium which formed the plaintiffs/ respondents’ bank (that is, the United Bank for Africa.) This is particularly important as the witness further testified that the British and French Bank still exists and in fact shares in the plaintiffs/respondents’ bank. What about the liabilities of the British and French Bank Were these also taken over as well or was the British and French Bank left to discharge these liabilities

In a case such as this, evidence relating to the terms and conditions of the take-over or the assignment of the assets such as a debt and of the liabilities of the bank which was taken over should have been put before the court. By way of illustration, we will refer to two cases namely Prescott Dimsdale, Cave, Tugwell and Co. Ltd. v. Bank of England [1894] 1 Q.B. 351 at pages 352-354 and Bradford Old Bank Ltd. v. Sutcliffe [1918] 2 K.B. 833 at page 835. The two cases dealt with claims arising out of the amalgamation or absorption of one bank by another bank or group of banks. The decision in each case shows clearly that there was evidence indicative of the terms of the amalgamation or absorption which the court had to consider before determining the rights and/or liabilities of all the banks concerned. In the instant case, the plaintiffs’ 3rd witness himself felt that “there must have been a Board Meeting which covered this asset along with all the others.” It may also be that a resolution was passed by the Board of Directors of each of the banks concerned, that is, the consortium of European and American banks, the British and French Bank, and possibly the plaintiffs/respondents’ bank before the buying up and transfer of the assets of the British and French Bank to the plaintiffs/respondents’ bank. Moreover there might also have been a written agreement between the two banks showing clearly what was sold, or bought or transferred. Of all these, there has been no evidence.

In the absence of any clear averments in the statement of claim on these points and of any evidence showing what sort of agreement was reached which could have transferred the debt which the defendant/ appellant was supposed to owe the British and French Bank to the plaintiffs/respondents’ bank, we are unable to hold that the assignment of the debt has been proved.

It is not, in our view, open to the 3rd plaintiffs’ witness to “suppose that there must have been a Board Meeting” at which certain decisions regarding the “assets” were taken. This is no more than a mere speculative observation and could not be a substitute for relevant and necessary evidence.

The learned trial judge was therefore in error in holding that the debt, if any owed by the defendant/appellant to the British and French had been assigned to the Plaintiff/Respondent. Since no assignment was proved,the Defendant/Appellant could not be liable to them for the amount claimed.

Learned counsel has asked that the plaintifffs/respondent be non-suited if we found that no assignment has been proved.As we pointed out in Craig v. Craig (1967) N.M.L.R.52 at page 55,and in other cases,an order of non-suit means giving a plaintiff a second chance to prove his case and the court has to consider whether,on the one hand that would be wronging the the defendant or whether on the other hand, an order of dismissal of the suit would be wronging the plaintiffs. In the instant case,the plaintiff/respondents had the chance to prove their case against the defendant/appellant and had completely failed to do so. An order of non-suit should only be made where a plaintiff has not failed in toto and where in any case the defendant is not entitled to the judgment of the court. (see Amobi v. Texaco Africa Ltd., S.C.593/1966 delivered on 20th March,1972). On the meagre evidence adduced by the plaintiffs/respondents in the present case,the defendant/appellant is certainly entitled to judgment. We are of the view, therefore, that this is not a proper case for a non suit.

The appeal is accordingly allowed and the judgment of the learned trial judge delivered in the Kano High Court in Suit No.K/64/1967 on 6th December,1968, including the order as to costs,is hereby set aside. Instead,we order that the plaintiffs/respondents claim be dismissed and this shall be the judgment of the court. Costs to the defendant/appellant are assessed in the court below at 100 guineas and in this court at 76 guineas.

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Other Citation: (1972) LCN/1388(SC)