H. A. Willoughby V. International Merchant Bank (Nig.) Ltd (1987)
LawGlobal-Hub Lead Judgment Report
ESO, J.S.C.
This is a very strange case with serious hidden undertones. It would be best to state the case of the parties as could be gathered from the pleadings. The appellant, H. A. Willoughby, who was the plaintiff in the trial Court – the High Court of Lagos State (Candide Johnson J., as he then was), claimed that having learnt from a company, known as the Cargo Handling Company Ltd., that a consignment of rice would arrive in the country for a Committee set up by the Federal Government, known as the Presidential Task Force Committee for Rice Affairs, and that if he was interested in purchasing some, he must deposit a sum in the amount of N2,249,330.00 into the United Bank for Africa, which had an account for the Respondents in account No. 20011172471, he on 5th July, 1982, made a deposit of this amount into that account. The appellant’s case was also that it was he who would give instructions to the Respondents as to the disposal of the amount, when the consignment of rice arrived.
By the end of August 1982, the appellant had had no news of the rice, and he approached “officials of the Defendant” for a refund of his money. It was then the officials informed Appellant that the money had been paid to a company named Howell Jones Ltd. Appellant denied knowledge of this company.
Now, one should pause here. The Managing Director of the company-Howell Jones Ltd., had many aliases. He was known as Anthony Onitiri (obviously a Christian name), Mallam Tukur Abdulai (obviously, a Moslem name). Howard Jones Ltd. itself is also known as Howell Johnson Ltd. Then another name surfaced. A firm of Solicitors, John O. Ige & Co., the principal of which is John Olagoke Ige, a lawyer with address at 36A West Pavilion, Tafawa Balewa Square, Lagos, gave evidence for the Respondents. The firm of solicitors, appellant was informed, had written to the respondents on behalf of the appellant, and on his instruction, that the appellant’s money, as aforesaid, was for the account of Howell Jones Ltd. alias Howell Johnson Ltd., alias Anthony Onitiri Managing Director, alias Mallam Tukur Abdulai, Managing Director.
The Respondent’s case is simply as follows: They had no business dealing with the Appellant prior to 5th July, 1982. And prior to that date, Howell Johnson Ltd., alias Howell Jones Ltd. alias Anthony Onitiri,.alias Mallam Tukur Abdulai, admittedly a customer of the Respondents, had instructed the Respondents that the sum of N2,249,330.00 was to be paid into account No. 2011172471 at U.B.A, the same amount and the same account number respectively averred by the Appellant, but with this difference, that the sum was to the account and benefit of the ubiquitously named Howard Jones, Ltd. The Respondents then pleaded estoppel as regards a letter written by the Appellant on 1st September, 1982 to the effect that the money was for the account of the Howell Johnson Ltd. and also that the Appellants Solicitor John O. Ige, heretofore referred, had written on behalf of the Appellant that the payment was made to the Respondents for the account of Howell Johnson.
The issues were so clearly defined by pleadings and at this stage one should look into the evidence tendered in court. Of course, the appellant himself gave evidence. In that evidence the name of Odesanya, an official of the Respondent’s Bank featured. He was the principal figure that transacted the business with the Appellant. He told the Appellant about consignment of rice, he gave appellant the account number, the appellant gave the original paying-in slip to Odesanya.
It was Odesanya he contacted when he started to entertain doubts about the transaction. It was Odesanya who advised him to write to Howell Jones Nig. Ltd. (a point now being used by the Respondents to constitute estoppel). Indeed, it was Odesanya to whom he handed the letter for Howell Jones as the appellant did not know Howell Jones’ address. I would like to reproduce the letter here –
“1st September, ’82.
The Managing Director,
Howell Jones Limited,
Lagos.
Atten: Mr. Anthony Onitiri
Dear Sir,
REFUND OF CASH PAID TO YOUR ACCOUNT NO. 2011172471 U.B.A. BROAD STREET, LAGOS REFRE INTERNATIONAL MERCHANT BANK, 77 AWOLOWO ROAD, LAGOS
I will be grateful for refund of cash paid into your account in respect of goods not yet delivered on the 5th July, 1982 the sum of N2,249,330.00 (Two Million, Two Hundred and Fourty Nine Thousand, Three Hundred and Thirty Naira only) was paid cash into your account. Please revate earliest into International Merchant Bank, 77 Awolowo Road, Lagos.
Thanking you in advance.
Yours faithfully,
(Sgd.)
H. A. Willoughby”
This was on 1st September, 1982. Then on 4th November, 1982 on Odesanya’s advice he wrote another letter Ex. D which reads-
“Bayo Willoughby,
31 McNeil Road,
Yaba,
Lagos State.
Date: 4th November, 1982.
The Managing Director,
Howell Jones Ltd.,
Lagos/London.
Atten: Mr. Anthony Onitiri
Dear Sir,
REFUND OF CASH PAID TO YOUR ACCOUNTNO. 2011172471 U.B.A. BANK BROAD STREET LAGOS – REFER INTERNATIONAL MERCHANT BANK – 77 AWOLOWO ROAD LAGOS
I will be grateful for refund of cash paid into your account in respect of goods not yet delivered on the 5th July, 1982, in the sum of N2,249,330.00 (Two Million, Two Hundred and Fourty Nine Thousand, Three Hundred and Thirty Naira) was paid cash into your account. Please revate earliest into International Merchant Bank 77 Awolowo Road, Lagos for collection.
My first letter dated 1st September, 1982 has not been replied to.
Kindly expedite immediate action thanking you in advance.
Yours faithfully,
(Sgd.)
Bayo Willoughby.”
It is significant that the two letters were for the attention of Anthony Onitiri. Howell Jones replied. Ex. E is that reply. It was signed by “T. Abdulai” one of the aliases of Anthony Onitiri. It reads-
“(H.J.) HOWELL JOHNSON LIMITED, 5 TOYIN STREET
P. O. BOX 3151, IKEJA, LAGOS-NIGERIA TEL.
TELEX: 22452 EQUITY NG
7th September 1982
FOR THE ATTENTION OF H. A. WILLOUGHBY
Dear Sir,
Ref. 1MB 2011172471 UBA as per your letter of the 1st September,1982
This is to acknowledge the receipt of your letter as above and be confirmed that we will be taking actions as requested.
Our Banker’s will be duly informed and will advise you very soon of our decision.
Yours faithfully,
(Sgd.)
T. Abdulai”
What followed was Ex. F a letter from Messrs Bayo Kehinde & Co. on behalf of the Appellant disclaiming knowledge of, or instructions to John O. Ige.
John O. Ige has featured so much. And so, I will reproduce, herein, the letter he claimed to have written on the instructions of the appellant. That letter EX.H’ reads-
“John O. Ige & Co. Entrance 36A
Legal Practitioners & West Pavillion
Notaries Public Tafawa Balewa Square
JOHN O. IGE LL.B. (Hons.) B.L. P. O. Box 9507
O.J. OTULANA LL.B., B.L. Lagos-Nigeria
Tel. 637147
Our Ref. JOI/IMB/83 11th January, 1983.
The General Manager,
International Merchant Bank (Nig.) Lid.,
77, Awolowo Raod,
LAGOS.
Dear Sir,
REFUND OF CASH PAID TO YOUR ACCOUNT NO. 2011172471 U.B.A. BROADSTREET LAGOS – REFER INTERNATIONAL MERCHANT BANK – 77, A WOLOWO ROAD, IKOYI, LAGOS
We have been consulted by Mr. H. A. Willoughby of No. 31, Mcneil Road, Yaba in connection with the above mailer.Our client has informed us that on 5th July, 1982, a sum of N2,249,330.00 (Two Million, Two Hundred and Forty Nine Thousand, Three Hundred and Thirty Naira) was paid to your U.B.A. Limited Account No. 2011172471 in favour of Messrs Howell Johnson Limited of 5, Toyin Street, Lagos for supply of rice. Our Client has further informed us that the amount aforesaid was paid in cash through your Manager – Treasure and Financial Services – Mr. Oladapo Odesanya.
It was our further instruction that since making the said payment, our Client neither received the rice nor a refund of the sum of N2,249,330.00 despite repealed demands.
TAKE NOTICE therefore that if within the next 7 days from the date hereof you fail to have the said amount refunded to our Client, we shall feel free to set in motion all the necessary legal machineries to recover the money without further reference. We attach herewith all the relevant documents for your perusal and necessary action.
While thanking you for your prompt action we remain.
Yours faithfully,
(Sgd.)
John O. Ige, & Co.
cc:
Legal Counsel/Company Secretary,
International Merchant Bank (Nig.) Ltd.,”
“The reply of the Respondent’s to Ex. H’ is EX.J which reads-
“INTERNATIONAL MERCHANT BANK
(NIGERIA) LIMITED
28th January, 1983.
Mr. H. A. Willoughby,
Managing Director,
H. Willys Company,
H 31 McNeil Road,
Yaba, Lagos. WITHOUT PREJUDICE
Dear Sir,
CASH OF N2,249,330.00 PAID INTO ACCOUNT OF MESSRS HOWELL JOHNSON LIMITED WITH INTERNATIONAL MERCHANT BANK (NIG.) LTD.
I acknowledge receipt of your solicitor’s letter reference JOI/IMB/83 dated 11th January, 1983 addressed to the Managing Director and Chief Executive of International Merchant Bank (Nigeria) Limited under advice to me in connection with the above subject matter.
The main thrust of your claim is that “on 5th July, 1982, a sum of N2,249,330.00 (Two million, Two Hundred and Forty-Nine Thousand, Three Hundred and Thirty Naira) was paid to (IMB’s) U.B.A. Limited account No.2011172471 IN FAVOUR OF MESSRS HOWELL JOHNSON LIMITED ” and that, the consideration for the payment having now failed, you wish for a refund from the Bank.
Please permit me to state emphatically that your claim is misdirected and that International Merchant Bank (Nigeria) Limited is not in a position to entertain your request.
As duly deposed to by your solicitors, International Merchant Bank (Nigeria) Limited received the money as a collecting Banker for the account of Messrs Howell Johnson Limited, a customer. Having therefore credited the account of the customer, the Bank is automatically precluded by law from releasing funds in such accounts to persons who are not signatories to the account. Even if we have to assume, without admitting, that Messrs Howell Johnson Limited did write the letter of 7th September, 1982, the fact still remains that the letter was addressed to you and cannot, in the circumstance, constitute an effective mandate to the Bank to release the money to you. The International Merchant Bank (Nigeria) Limited has very clear procedures on the operation of accounts by account holders. Any request by the customer of the Bank to release funds to third- parties must be accompanied by the Bank’s Domestic Payment Order duly signed by those who can establish a better claim to operate that account.
Having regard to the foregoing therefore, I am constrained to inform you that your claim is misdirected because the International Merchant Bank (Nigeria) Limited has not received any Domestic Payment Order from Messrs Howell Johnson Limited, instructing the Bank to release any amount of money to you.
I must in the circumstance insist that you revert to Messrs Howell Johnson Limited for your money and desist from further harassing the staff of the Bank.
Yours faithfully,
INTERNATIONAL MERCHANT BANK (NIG.) LTD.
(Sgd.)
Eneli Armah
LEGAL ADVISER/COMPANY SECRETARY
cc: Managing Director.
Howell Johnson Limited,
5 Toyin Street,
P. O. Box 3151,
Ikeja, Lagos.
E. E. Banigo – Managing Director & Chief Executive I.M.B.
O.O. Odesanya – A.G.M. Treasure & Financial Servs. I.M.B.”
Indeed Anthony Onitiri swore to a declaration Ex. K where he claimed Willoughby to be his customer. He said-
“SWORN DECLARATION
I, ANTHONY ONITIRI, Businessman of Howell Johnson Limited, 11. Connaught Place, London W.2. do make Oath and declare as follows:
- That I am a Director of Howell Johnson Limited and in that capacity, I am familiar with the facts deposed hereto and also do so with the authority of the Company.
- That Mr. H. Willoughby of 31 Mcneil Road, Yaba is our customer.
- That arising from business negotiations between our Company and the said H. Willoughby, he was requested to pay the sum of N2,249,330.00 into INTERNATIONAL MERCHANT BANK (NIGERIA) LIMITED (IMB)’s account No.2011172471 at U.B.A. which amount was to be held for our account by the said I.M,B.
- That the said sum was duly paid as instructed above on the 5th of July, 1982 whereinafter we informed our Bankers I.M.B.
- That we hereby undertake to indemnify I.M.B. in respect of any claims, including legal fees incurred by it in defending the present Suit in Court – FHC/U49/83 or any other Suit that might be instituted by the said H. Willoughby in connection with the amount so deposited with I.M.B.
- I swear to this affidavit in good faith.
Sworn to this
day of 1983
………………….
DEPONENT
BEFORE ME
COMMISSIONER FOR OATHS
NOTARY PUBLIC”
And so, there was no dispute on the documents available, for the identity and admission of the involvement of Howell Johnson, alias Howell Jones, alias Anthony Onitiri, alias Abdulai. Yet the summons was directed against the Respondents claiming a refund of N2,249,330,00″ deposited on 5th day of July, 1972 into the U.B.A. for the Defendant’s said account No. 2011172471 with the information received from the Defendant that a consignment of rice was arriving in Nigeria for the Presidential Task Force Committee.”
As part of his evidence, Willoughby tendered Ex. A. the paying slip issued by the United Bank for Africa, crediting the Respondents with the sum in question. It was as I have already said, Odesanya, who gave him the account Number. Willoughby’s was the only evidence given from the Plaintiff.
It was the Respondents who called John Ige. Ige claimed and this is very important indeed, that it was the Plaintiff who instructed him to write the letters I have already set out in this judgment.
Significantly, the Plaintiffs counsel never cross-examined Mr. John Ige and this was all the evidence before the learned trial Judge when the Respondents closed their case. But when Prof. Kasunmu moved to address the court at the close of his case for the Respondents, Mrs Akinosho for the Plaintiff/Appellant applied to call “additional evidence” and “to cross-examine John Ige.” The excuse Counsel said-
“I was in an unsuitable condition when he (sic Ige) gave evidence as my brother had just died”
Candide Johnson J. (as he then was) ruled-
“The interest of justice is paramount in any trial before the Court and it is in the inherent jurisdiction of the Court in appropriate cases to promote that interest. The application (sic) given by the Plaintiffs counsel as to her state at the last hearing deserves sympathy and since no irreparable damage would be done to the defendant in that it would be open to it and with the Court’s ready permission to re-open its case and meet whatever issue is introduced. I am of the considered view that the interest of justice is better served by a grant of the application to allow Plaintiffs counsel to recall the Defendant’s witness for cross-examination and to call further evidence if she wishes.
Application is granted and leave is hereby granted to the Plaintiffs counsel to re-open Plaintiffs case and recall the 1st Defendant’s witness for cross-examination with liberty to the Defendant’s counsel to also re-open the defendant’s case to meet any fresh issue raised.”
(Italics mine)
It is important to state here that the learned trial Judge did not hide under the cloak of any Rule of Court. His authority is interest of justice which he said comes under the inherent jurisdiction of this Court. This was the ruling that went on appeal to the Court of Appeal (Ademola, Nnaemeka-Agu and Uthman Mohammed, J.J.C.A.). In a considered judgment, read by Ademola J.C.A. with which Nnaemeke-Agu and Uthman Mohammed J.J.C.A. concurred, the learned Justice of the Court of Appeal referred to the decision of this Court in Ogbodu v. Odogha & Another (1967) N.M.L.R. 400 where Coker J.S.C. delivering the judgment of this court said –
“undoubtedly the discretion to recall a witness by a judge is one which should be exercised with great care, regard being had to the interest of justice and the desirability of remaining an impartial arbiter between the parties; but it will be as wrong to say that a judge has an unfettered discretion to call or recall a witness in civil proceedings at any stage of the trial as to say that he has no right to recall a witness at any stage of the proceedings even when, in the interest of justice he was obviously obliged to do so in order to clarify a point of evidence which had arisen in the proceedings before him and the implications of which are well within the knowledge of both parties to the litigation.”
(Italics mine)
Ademola J.C.A. made a very important point. He said-
“The interest of justice must always in my view be predicated upon certain ascertainable reasons or principles which must be clear in every instance and situation.”
He then said –
“I do not think I need go further because it seems to me the only reason for granting the application as so stated by the learned judge was the state of mind of the respondent’s counsel (appellants in this Court) on the day appellant’s witness, Mr. Ige, the Solicitor gave evidence. But as Professor Kasunmu rightly submitted that on the pleadings the fact that Mr. Ige, the appellant’, witness will be called and the question whether instructions were given by the respondent to him were matters upon which issues were joined. Therefore, it seems to me that the evidence of Mr. Ige should not be a surprise or need to be rebutted. The respondent’s counsel should have been prepared to meet it. She failed to meet it and it will be an indulgence not rooted in any legal principle to allow her to cross-examine the witness or lead additional evidence after the close of the case for the appellant in the court below.”
(Italics mine)
The Court allowed the appeal and the appellant has appealed to this Court upon the following grounds of appeal –
“1. The learned justices of the Court of Appeal erred in law when they imply, in effect, that the issue of recall of witnesses in Lagos State is governed by the provisions of the Evidence Act.
Particulars of Error
Recall of witnesses in Lagos State is not governed by the Evidence Act but by Order 32 rule 17 of the High Court of Lagos State Civil Procedure Rules, 1972.
- The learned justices of appeal erred in law when, after finding that “The learned judge in the instant case granted the application in the interest of justice.” went on to say that they could not “discern from the ruling any reason or grounds upon which the application was granted in the interest of justice.”
Particulars of Error
Having found that “The learned judge granted the application in the interest of justice.” the Court of Appeal contradicted itself by saying that it could not “discern from the ruling any reason or grounds upon which the application was granted in the interest of justice,” even though the learned trial judge did say categorically in the ruling that “no irreparable damage would be done to the Defendant.”
- The learned justices of appeal erred in law in not applying the provisions of Order 32 rule 17 of the Lagos State High Court civil procedure Rules, 1972.
Particulars of Error
Order 32 rule 17 of the Lagos State High Court Civil Procedure Rules, 1972, gives discretion to the learned trial judge to grant an application by the Plaintiff to recall Defendant’s witness, which discretion the learned trial judge rightly exercised in the interest of justice, with no irreparable damage to the Defendant. ”
The contention of Chief Bayo Kehinde S.A.N. revolved around Order 32 Rule 17 Lagos State (High Court) Civil Procedure Rules, and also what he referred to as the interest of justice. Having heard learned counsel, we had no difficulty in dismissing the appeal without considering it necessary to hear the Respondents. The appeal was summarily dismissed as having no merit whatsoever. I deferred my reasons for so doing till today to allow time to go into the matter in some detail especially as the hallowed phrase “interest of justice” has permeated the entire proceedings right from the trial Court to this Court.
Before dealing with the issue of the Rules of Court, I would like to state that the phrase interest of justice is not a carte blanche or licence for an unimpeded exercise of power, even against the Rules, in the guise of interest of justice. Justice, as a concept is not easy to define despite postulates by great Jurists from time immemorial even to Roscoe Pound who dwelt extensively on this concept. It is perhaps for the reason of the difficulty in an objective definition of justice that it has been considered safest to regard justice to be done once it is according to law; and law must necessarily include the procedure laid down for its attainment. To leave the attainment of justice at large, and ignore the rules is to establish a subjective course of action which could lead to judicial tyranny and the omnipotence of individual judges. Surely, such course will end in chaos and certainly not an attainment of interest of justice according to the law of the land.
A judge must be bound by rules – accepted rules made under the law of the land – in order not to leave the populace in the fear of saucy dreams of a Judge, who would believe, like Humpty Dumpty that “when I say this, it must be so” – And why “Because I say so and consider that to be in the interest of justice”.
Indeed, a clear analysis of the judgent of this Court in Ogbodu v. Odogbo and Anor. supra is evidence of this. Coker J.S.C. said it”
undoubtedly the discretion to recall a witness by a judge is one which should be exercised with great care”
Great care is the first constraint to the exercise of the discretion of the judge. And when the learned Justice of the Supreme Court spoke of the interest of justice, he made it clear
“regard being had to the interest of justice and the desirability of remaining an impartial arbiter between the parties”
How could a Judge remain an impartial arbiter between parties if he indulges again, one to whom he had given an opportunity to cross examine, probably the most important witness in the case – a lawyer who claimed to have acted on the instructions of the Plaintiff which instructions Plaintiff disclaimed in his pleadings and yet counsel without any explanation refused to cross examine this witness only to show up the following day after the closure of the case for the Defendants before applying to be allowed to cross examine the witness. And also, on the excuse that she was in unsuitable condition as her brother had just died! It is true, as the learned trial Judge said, that the interest of justice is paramount in any trial before the Court, but as Coker J.S.C. put it in Ogbodu v. Odogho supra a judge does recall a witness-
“……….when in the interest of justice he was obviously obliged to do so in order to clarify a point of evidence which had arisen in the proceedings before him and the implications of which are well within the knowledge of both parties to the litigation.”
There is no point to clarify in the instant case. The evidence before the learned trial Judge was clear cut. The attitude of both counsel to this evidence is pointed. After John Ige has given his evidence, the attitude of Plaintiffs’ counsel was to decide not to cross examine, despite the illuminating but most damaging and decisive evidence of the man against her client. Prof. Kasunmu’s attitude was, wisely I should say, to close his case after the Plaintiff would appear to have completely admitted the case against him. It is not in the interest of justice for an arbiter to grant an indulgence that would, after the close of that case, upon the oral and documentary evidence, permit the Plaintiff to reopen the case and have a second bite at the cherry.
Lastly, I would wish to refer to the Rule of Court relied upon before this Court. This is Order 32 Rule 17 of the High Court of Lagos State (Civil Procedure) Rules which provides –
“If the party opposed to the party beginning calls or reads evidence, the party beginning shall be at liberty to reply generally on the whole case, or he may, by leave of the Court, call fresh evidence in reply to the evidence given on the others side on points material to the determination of the issues, or any of them, but not on collateral matters.”
This Rule deals with the procedure to be adopted at the trial of a case. After the close of the case by the Plaintiff (or the party beginning the other party (presumably the defendant) shall be at liberty to “state his case” that is, by outlining to the Court the nature of his case and the evidence he intends to lead thereupon. After such evidence, he sums up and makes comment upon the case (Rule 14).
If the other party (presumably the defendant) calls no evidence after this, the plaintiff (or the party beginning) has no right of reply. The only exception to this rigour is, if the plaintiff (or the party beginning) has been prevented from summing up his case – the prevention being the statement of the other party (presumably the defendant) that he intends to call evidence. (Rule 15).
It is then after this, that the case on both sides is regarded as closed (Rule 16). What should follow is “addresses”. But before then, the other party that is the one who did not begin, (presumably the defendant) might have called or read evidence. In the instant case, the Defendants called evidence. Then the plaintiff (or the party beginning), in the instant case, the Appellant, would be at liberty to ‘reply generally on the whole case. This means he addresses generally on the whole case. In the alternative, that is alternative to the general address, he, the plaintiff or the party beginning, (in the instant case the Appellant) may seek leave of the Court to call fresh evidence in reply to the evidence given on the side (Rule 17).
What is it that the Appellant has sought in this case He seeks to put in additional evidence. Why She did not expect John Ige would come to court to perjure. What is the perjury John Ige wrote Exhibit “H” wherein he claimed to have acted upon the instructions of the Appellant. He identified the letter during his evidence. The letter itself is part of a batch of documents agreed upon and tendered by the consent of both counsel. The same letter had earlier been pleaded by the Defendants in their statement of defence. The learned counsel who filed the statement of Claim for the Appellant and upon whom the Statement of Defence was served and who represented the Appellant throughout the trial said she had no question for the witness John Ige after his evidence. In law, John Ige’s evidence is accepted as correct by the Plaintiff/Appellant. And so, what is the perjury
To my mind Rule 17 is inapplicable to this type of cases. Rule 17 is not meant to subvert Defendants claim.
And for all these reasons I dismissed the appeal on 27th October, 1986 with N300.00 costs.
Other Citation: SC.109/1985
