Memudu Akanmu V. Co-operative Bank Plc. & Ors (2005)

LawGlobal-Hub Lead Judgment Report

AGBO, J.C.A.

This appeal is against the judgment of Hon. Justice Jimi Bode, sitting at the Osun State High Court, Osogbo, which judgment was delivered on 12th February, 2001. This appellant was the plaintiff in the suit, while the respondents were the defendants’ cross-claimants. The appellant had in paragraph 39 of his amended statement of claim in the court below, claimed of the defendants now respondents as follows:

“1. Declaration that the amount entered as debit balance in the plaintiff’s account No. PA. 11 with the 1st defendant is not a true and accurate reflection of the plaintiff’s account.

2. Declaration that the plaintiff is not liable to pay any charge by whatever name called on any debit, entries, improperly or wrongly entered by the 1st and 3rd defendants in the plaintiff’s account.
3. An order directing the 1st and 3rd defendant to furnish to the plaintiff, a true and accurate statement of the plaintiff’s account No. PA. 11.
4. Declaration that the exercise of the power of rights of sale by the defendants of the plaintiff’s properties situate, lying and being at Gbongan/Osogbo Road, Owode via Ede, Osun State which are Woleysam petrol station and two bungalow buildings covered by deed of mortgage registered as No. 29 at page 29 in volume 43 and No. 30 at page 30 in volume 43 respectively of the Land Registry in the office at Osogbo is null and void and of no effect.
5. A declaration that the purported auction Sale/notice by the second defendant to the plaintiff is defective for non-compliance with Auctioneer’s Law, Cap. 10, Laws of Oyo State of Nigeria, 1978 (applicable in Osun State) and it is therefore null and void.
6. Injunction restraining the defendants, their agents, servants, officers and/or privies from taking any step or any further steps towards or in pursuance of the decision of the defendants to sell the plaintiff’s properties situate, lying and being at Gbongan/Osogbo station and two bungalow buildings covered by deed of mortgage registered as No. 29 at page 29 in volume 43 and No. 30 at page 30 in volume 43 respectively of the Lands Registry in the office at Osogbo.
7. Any other relief that the plaintiff may be entitled to in this suit.
8. The plaintiff claims the sum of N 1,200,000.00 (One and third defendants jointly, severally and collectively being the cost of the plaintiffs 40 (Forty) Tons (640 bags) of Graded cocoa beans which the first and third defendants removed and sold from the plaintiff’s Cocoa-Store in his absence without the plaintiff’s knowledge, consent and/or authority in January, 1990.
9. The plaintiff claims the sum of N192,000.00 (One Hundred and Ninety-Two Thousand Naira), being the cost of the plaintiff’s 640 (six Hundred and Forty) empty bags of cocoa beans which the first and third defendants removed and sold from the plaintiff’s cocoa-store in his absence without his knowledge, consent and/or authority sometime in January, 1990.
10. Interest at the rate of 15% (Fifteen per-cent) from the 15th day of January, 1990, till the judgment is delivered and at the rate of 10% from the date of judgment till Judgment debt is fully paid”.

The respondents joined issues with the appellants in their statement of defence and denied the claims. The 1st defendant/respondent further counter-claimed from paragraph 21 to 26 of the amended statement of defence as follows:-

“21. The defendants plead and repeat paragraphs 1-20 of the amended statement of defence by way of counter-claim and aver further as follows:

22. The various credit facilities granted to the plaintiff were done in the normal course of banking business which facilities attracted varying rates of interest as stipulated from time to time by the 1st defendant and capitalized monthly.
23. The statements of account were never controverted by the plaintiff.
24. The various credit facilities which were fully utilized by the plaintiff resulted in the plaintiff becoming indebted to 1st defendant in the sum of N498,857.76 (Four Hundred And Ninety-Eight Thousand, Eight Hundred and Fifty Seven Naira and Seventy-Six Kobo.
25. The plaintiff instead of paying up his just debt applied for stoppage of interest on his account which request was rejected.
26. Whereof the 1st defendant counter-claims against the plaintiff the sum of N498,857.76 (Four Hundred and Ninety Eight Thousand, Eight Hundred and Fifty Seven Naira and Seventy Six Kobo) being the plaintiff’s indebtedness to it as at the 21st of June, 1995. Interest on the said sum at the rate of 21% per annum from the 22nd of June, 1995, until whole debt is finally liquidated”.

After taking evidence from the parties and taking their addresses, the court below in its judgment dismissed the plaintiffs’ claim and granted the 1st defendant’s counter-claim in full. Dissatisfied with that judgment, the appellant on 2nd May filed this appeal. He set out the following grounds of appeal:-

“1 The learned trial judge erred in law and on facts when he held thus:

” … That the plaintiff is not entitled to N1,200,000.00 (One Million, Two Hundred Thousand Naira) from the defendants because the cocoa was removed and sold from the plaintiff’s store with his knowledge, consent and authority. I also hold that the defendants are not liable to pay N192,000.00 (One Hundred and Ninety-Two Thousand) being cost of 640 empty bags of cocoa beans because it was removed and sold from the plaintiff’s cocoa store with the plaintiff’s consent, knowledge and authority.”

Particulars of error:

(i) The sale of the graded 40 tons of Cocoa beans and the 640 empty cocoa bags by the 1st defendant was without the express or ostensible authority from the plaintiff to sell same.

(ii) The sale of the graded 40 tons of cocoa beans and the 640 empty cocoa bags by the 1st defendant was tainted with undue influence exercised over the plaintiff by the 1st defendant knowing fully well that the plaintiff was in custody at Iyaganku police station, Ibadan, for an alleged armed robbery case.

2. The learned trial judge erred in law, in entering judgment for the defendants/respondents, when the evidence of D.W.1 Oladayo Oladipo, (the only witness to the defendants/respondents) at the trial was at variance with their pleadings.

Particulars of Error:

(i) The defendants/respondents’ witness (i.e. D.W1) claimed at the trial to have visited the plaintiff not less than 4 (four) times at Iyaganku, police station, Ibadan and at Agodi prisons on about 5 (five) occasions and that during one of his visits to the plaintiff, the plaintiff called him and requested that the 1st defendant should help him sell his cocoa whereas this piece of evidence was never pleaded in the amended statement of defence and counter-claim.

(ii) The D.W.1 gave evidence at the trial that he weighted the cocoa in the presence of the following:

-The Police

-One of the wives

-The bank

-The person who wanted to buy it, but all those were not pleaded in the amended statement of defence and counter-claim.

3. The learned trial Judge erred in law, and on the facts by not holding that the sale of the plaintiff/appellant’s 40 tons of graded cocoa beans and 640 empty cocoa bags by the 1st defendant to one Alhaji Omidiran was illegal thereby rendering the whole contract of sale null and void.

Particulars of Error:

(i) The plaintiff/appellant’s 40 tons of graded cocoa beans and the 640 empty cocoa bags were not part of the properties the plaintiff/appellant provided as securities to the 1st defendant.

(ii) Sale of the plaintiff/appellant’s properties which are not included in the security provided by the plaintiff without an order of the court is invalid, null and void.

(iii) The sale of the plaintiff/Appellant’s 40 tons of graded cocoa beans and the 640 empty cocoa bags were not witnessed by an officer or officers duly authorized by the court.

(iv) The sale of the plaintiff/appellant’s graded 40 tons of cocoa beans and 640 empty cocoa bags was not authorized by the order of any court and there was no application before any court to carry out the said sale.

(v) The name of the police who witnessed the sale, his or her force number, his or her rank in the force or his or her police station was never identified and that police was never called as a witness.

(vi) One of the plaintiff/appellant’s wives and the bank who witnessed the sale was not identified.

(vii) The person who purchased the plaintiff/appellant’s graded cocoa beans and the empty cocoa bags, Alhaji Hammed Omidiran never appeared throughout the trial.

4. The learned trial Judge erred in law, when he failed to hold that the 1st defendant exceeded his authority and acted illegally by disposing by way of sale the plaintiff/appellant’s 40 tons of graded cocoa beans and 640 empty cocoa bags, when there were no express or implied authority from the plaintiff/appellant to the 1st defendant/ respondent to sell the goods.

Particulars of Error:

(i) The securities provided by the plaintiff/appellant as collateral for the grating of the loan by the 1st defendant are:

(a) 2 bungalows at Owode, Ede;

(b) Petrol Station at Owode, Ede; and

(c) Passbook No. 296 with N4,916.05 credit balance.

It never included 40 tons of graded cocoa beans and 640 empty cocoa bags.

(ii) The collateral securities are the legal properties of the plaintiff/appellant which he offered to the 1st defendant in respect of the loan transaction between the plaintiff and the 1st defendant.

(iii) Although, the loan facility granted to the plaintiff/appellant by the 1st defendant was said to expire in February, 1990, the 1st defendant sold the 40 tons of the graded cocoa and 640 empty cocoa bags before the expiry date.

(iv) The right to enforce the payment of debt (if any) by legal action is limited to the securities provided by the plaintiff/appellant to the 1st defendant.

5. The learned trial Judge erred in law, and on facts by not awarding to the plaintiff, the market value of 40 tons of graded cocoa beans and 640 empty cocoa bags as at the time of sale by the 1st defendant/respondents when market value was N1,200.000.00 for the 40 tons of graded cocoa beans and N192,000.00 for the 640 empty bags of cocoa beans.

Particulars of Error:

(i) It is a common ground between the parties that the 409 tons of cocoa beans were graded before the sale.

(ii) The defendants/respondents did not state the cost price of a ton of graded cocoa beans and the cost of an empty cocoa bag in his evidence before the lower court.

(iii) In rebuttal of the value of the 40 tons of graded cocoa beans and 640 empty cocoa bags as N1,200,000.00 did not adduce any evidence or call any expert opinion on cocoa price or even call the person that bought the cocoa to give evidence.

(iv) The sale of the graded cocoa beans by private arrangement between the 1st defendant/respondent and one Alhaji Omidiran is not sale in market overt.

(v) The sale of graded cocoa beans without an auction notice to do so is not sale in market overt.

6. The learned trial Judge erred in law and on facts by holding the “the 1st defendant through and statement of account exhibit’ AA’ and ‘BB’ was able to show that the plaintiff was owing the 1st defendant the sum of N498,857.76, as at 21/6/95” and thereby came to a wrong decision.

Particulars of Error

(a) Exhibit ‘AA’ and ‘BB’ were made and prepared by the 1st defendant without the consent and knowledge of the plaintiff/appellant.

(b) Exhibit “AA” and “BB” were self serving document to suit the purpose of the 1st defendant/respondent.

(c) The 1st defendant/respondent having admitted that there were machine errors in the calculation of the accounts of the plaintiff, the learned trial Judge ought to have expunged exhibits ‘AA’ exhibits ‘AA’ and ‘BB’ from the records.

7. The learned trial Judge erred in law when he held as follows:

“The defendant on the other tendered exhibits ‘AA’ and ‘BB’, i.e the statement of account of the plaintiffs. The D.W1 stated that exhibit ‘AA’ and ‘BB’ were Produced from the ordinary books of the bank. Although, there are machine errors in said exhibit ‘AA’ and ‘BB’ but according to D.W. 1 and exhibit “AA” the plaintiffs indebtedness as at 1995 was N498,857.76.

Particulars of Error:

(a) The learned trial judge no doubt believed that there were machine errors in the calculation of the account of the plaintiff; he still went to find for the defendant on uncertain facts and figures.

(b) The degree of machine error in the calculation of the account of the plaintiff was never resolved.

(c) The award of N498, 857.75k to the 1st defendant as debt of the plaintiff was based on mere imagination, whims and caprices of the Judge.

(d) The machine error admitted by the defendant is enough for the Judge to hold that the plaintiff was not indebted to the 1st defendant/respondent.

(e) The D.W.1 testified at the lower court that the 1st defendant does not operate week-end banking vat exhibits ‘AA’ and ‘BB’ show that on 4/4/87 (which was a (Saturday) the plaintiff/appellant withdrew the sum of N11,500.00 from the 1st defendant with cheque No.293117; the amount which was debited into the plaintiff/appellant’s account.

(f) On 13/2/84, the plaintiff paid N300.00 to the 1st defendant through Teller No. 314548 (exhibit ‘D’) which was not reflected in the statement of account, i.e. exhibit ‘AA’ and ‘BB’.

(g) On 27/2/84, the plaintiff paid N300.00 to the 1st defendant through Teller No. 314549 (exhibit ‘D’) which was not reflected in the statement of account, i.e. exhibit ‘AA’ and ‘BB’.

(h) The plaintiff/appellant paid N1,000.00 to the 1st defendant through Teller No. 176903 (exhibit D7) on 22/1/92 but it was reflected in the statement of account i.e. exhibit ‘AA’ and ‘BB’ to have been paid on 20/1/92.

(i) The plaintiff paid N250.00 to the 1st defendant through teller No. 288330, i.e. exhibit ‘D1’ on 8/5/91, but it was reflected in the statement of account, exhibit ‘AA’ and ‘BB’ to have been paid on 6/5/91.

(j) The payment of N1,000,00 which the plaintiff made to the 1st defendant through exhibit ‘D3’, Teller No. 757574 of 31/7/89 is reflected to have been paid on “July 1989”

(k) The plaintiff paid N500.00 through Teller No. 757576 of exhibit ‘D3’ on 9/8/89, but it was recorded in exhibits ‘AA’ and ‘BB’ to have been paid on 7/8/89.

(l) The plaintiff paid N100.00 to the 1st defendant on 21/5/90 through Teller No. 757585, exhibit ‘D3’ but it was recorded in exhibit ‘AA’ and ‘BB’, i. e. the statement of account to have been paid on 1/5/90, which was a public holiday (Worker’s Day)

(m) The plaintiff paid N1,400.00 to the 1st defendant on 23/12/88 through Teller No. 422044 (exhibit ‘D2’ but it was recorded to have been paid in on 13/12/88 in exhibit ‘AA’ and ‘BB’ i.e. the statement of account.

(n) The plaintiff paid N1,000.00 to the 1st defendant on 23/1/89 by Teller No. 422050, exhibit ‘D2’ but exhibit ‘AA’ and ‘BB’ show that it was paid on 25/1/89.

(o) The plaintiff paid N4,500.00 on 6/4/87 to the 1st defendant through Teller No. 684454 i.e. exhibit ‘D4’ which is never reflected in the statement of account, i.e. exhibit ‘AA’ and ‘BB’.

(p) The plaintiff paid N2,500.00 to the 1st defendant on 11/8/86 through Teller No. 988760, exhibit ‘D6’, but it reflected on exhibits ‘AA’ and ‘BB’ to have been paid in on 21/8/86.

(q) On 9/3/87, the plaintiff paid N1,500.00 to the 1st defendant through Teller No. 988797, exhibit ‘D6’. But it was recorded in exhibits ‘AA’ and ‘BB’ to have been paid in on 16/3/87.

8. The learned trial Judge erred in law, and on facts by not dismissing the counter-claim of the 1st defendant as there were no evidence led as to the claim of N498.857.76, allegedly owed to the 1st defendant by the plaintiff.

Particulars of Error:

(a) Having held that there were machine errors in the account of the plaintiff, the counter-claim should have been dismissed.

(b) D.W.1 stated as follows:

“And as at 1995, the plaintiff’s indebtedness to the 1st defendant was N498,857.76K”.

No further evidence apart from erroneous exhibit ‘AA’ and ‘BB’ to support the counter claim.

(c) D.W.1 Oladiya Oladipo, was only a senior manager of the 1st defendant and not an accountant or auditor of the 1st defendant/respondent.

The appellant filed his brief of argument and reply brief. The respondents filed their brief of argument. The appellant set out two issues for determination of page 5 paragraphs 201 and 202 of his brief as follows:-

“201. Whether the 1st and 3rd defendants/respondents had shown that the plaintiff/appellant gave them authority to sell his forty Tons (40 Tons) of the graded cocoa beans and the six hundred and forty empty bags (640 bags) when the defendants/respondents did not plead such evidence.

202. Whether the learned trial Judge was right in relying on and making use of exhibits “AA” and “BB” (statement of account) when there was an admission of error in their productions”

The respondent on the other hand distilled only one issue for determination and that is “whether it is the appellant who is indebted to the 1st respondent or vice versa”.

A careful perusal of the grounds of appeal shows that neither the two issues distilled by the appellant or the single issue by the respondent cover fully the issues arising from the grounds of appeal for determination. When however the respondents issues for determination is joined to appellant’s two issues, the grounds of appeal appear fully covered. I shall therefore take the three issues in determining this appeal.

The first issue for determination raised by the appellant is “whether the 1st and 3rd defendants/respondent had shown that the plaintiff/appellant gave them authority to sell his forty tons of his graded cocoa beans and the six hundred and forty empty bags when the defendants/respondents did not plead such evidence”. On this issue, appellants counsel had argued strenuously that the evidence of the only defence witness that he was authorized by the plaintiff/appellant to sell the cocoa beans and bags in contention is at variance with the paragraph 8 of the plaintiffs pleading which state inter alia.

“The 1st defendant, through the assistance of 2nd defendant took prompt steps to salvage the plaintiff’s situation by assisting him in selling some of his graded cocoa beans to his major suppliers who credited the proceeds of same into the plaintiffs account to reduce his indebtedness”.

D.W.1 had testified that he had visited the appellant in custody five times and was authorized by the appellant to dispose of the appellant cocoa beans which he did and paid the proceeds into the appellant’s bank account with the 1st defendant/respondent.

The appellant’s position here is that paragraph 8 of the defendant’s pleadings having stated that the 3rd defendant assisted the 1st defendant in selling the graded cocoa beans, any evidence that any other person played any role in the said sale go to no issue.

Appellant’s counsel had laboured under the very wrong impression that a litigant is expected in his pleadings to plead all the EVIDENCE he will be placing before the court in urging his case. That is wrong.

In all courts of pleadings, what a party is required to plead are the FACTS upon which he would be founding his case.

Appellant’s counsel rightly stated the legal position when in his argument he had said:-

“It is fundamental that issues before the court are decided on the pleadings of the parties. A party must state all the material facts which he relies upon in support of his claim before the court. Material facts not pleaded cannot be raised at the trial. See Chief (Dr) (Mrs) Olufunmilayo Ransome-Kuti & Ors. v. A.-G., Federation & Ors. (1986) 6 S.C. 246 at 306; (1985) 2 NWLR (Pt.6) 211.”

There is no way it can be concluded that paragraph 8 of the plaintiff’s pleadings suggest of no other activity by any other person acting on behalf of the 1st defendant who is an at1ificial person except the 3rd defendant. It is an accepted fact that the D.W1 was at all material times an employee of the 1st defendant. The appellant’s counsel’s appreciation of paragraph 8 of plaintiff’s pleadings is too constricted. Evidence by other persons outside the 3rd defendant that they acted on behalf of the 1st defendant/respondent in its relationship with the plaintiff and partook in the contentious sale of the plaintiff’s cocoa beans and bags come comfortably within the ambit of paragraph 8 of the plaintiffs pleadings. The court below was right in admitting the evidence of D.W.1 that he was authorized by the plaintiff to sell plaintiff’s cocoa beans and bags and that the money realized from the sale was paid into the plaintiff’s account with the 1st defendant. I find no merit in appellant’s issue No. 1. Issue No.2 is “Whether the trial court was right in relying on and making use of exhibits ‘AA’ and ‘BB’ (statement of account) when there was an admission of error in their production. Exhibits ‘AA’ and ‘BB’ were statements of account prepared by the respondent. They show that as at 1995 the appellant was indebted to the respondent in the sum of N498,857.76. Exhibits ‘AA’ and ‘BB’ constitute secondary evidence of the respondents banker’s book. The court below found as of fact that the exhibits contained “Machine errors”. In effect, the exhibits do not contain the correct record in the banker’s books.The appropriate method used by a bank to establish the indebtedness of its customer is through the entries in its books. Because of the bulky nature of these books, the banker is allowed to prove these entries by secondary evidence. But this is regulated by S.97(1) (h) and 97(2) (e) of the Evidence Act. See Obijiaku v. N.D.I.C (2002) 10 NWLR (Pt.774) 201 at 215, Yassin v. Barclays Bank D.C.O. (1968) N.M.L.R. 380, Yesufu v. ACB Ltd. (1976) 1 All NLR 328.

To fully appreciate these provisions of the Evidence Act Cap.112 Laws of the Federation of Nigeria, 1990, referred to above Ss. 97(1)(h) and 97(2)(e) are set out hereunder:-

“97. (1) Secondary evidence may be given of the existence, condition or contents of a document in the following cases:

(h) when the document is an entry in a banker’s book.

(2) The secondary evidence admissible in respect of the original documents referred to in the several paragraphs of subsection (1) of this section is as follows:

(e) in paragraph (h), the copies cannot be received as evidence, unless it be first proved that the book in which the entries copied were made was at the time of making one of the ordinary books of the bank, and that the entry was made in the usual and ordinary course of business, and that the book is in the custody and control of the bank, which proof may be given orally or by affidavit by a partner or officer of the bank, and that the copy has been examined with the original entry and is correct, which proof must be given by some person who has examined the copy with the original entry and may be given orally or by affidavit.”

As found by the court below, exhibits ‘AA’ and ‘BB’ are not correct copies of the banker’s books. They should not have been admitted in evidence in proof of defence case and where so wrongly admitted ought to have been expunged from the records. The court founded its judgment for the respondent in its counter-claim entirely on these exhibits. That judgment must go with these exhibits.

The respondent in its brief of argument raised a single issue, “who is owing who?” The appellant as plaintiff admitted in his pleadings to having taken some loans from the respondent and secured them by mortgaging to the respondent some property. It is the attempt by the respondent to realize those mortgages that gave rise to this suit. The appellant claims to have fully repaid these loans and the interests accruing thereon. He who alleges proves. The appellant took out this suit in 1995. On 10th January, 1994, he wrote exhibit ‘Y’ to the respondent. Exhibit ‘Y’ is reproduced hereunder:”

Wolesam Petroleum,

Owode-Ede,

Osogbo.

The Branch Manager,

Co-operative Bank Plc.,

Osogbo.

Dear Sir,

Re: Interest on overdraft

I hereby, request and beg the management to please for now stop charging monthly interest on my secured overdraft with your Osogbo branch.

My predicament started when I was robbed in 1990, and was erroneously detained at the police station for more than 5 months, before I was discharged and acquitted. Since the incident, my business has suffered a great set back.

For now, I deal with petty trade to enable me meet the two ends.

I am through this forum appealing to the management to stop the interest charged monthly so as to enable me operate my account to the best of my ability.

Awaiting your favourable reply.

Yours faithfully,

Sgd.

MEMUDU AKANMU.

The 1st paragraph of exhibit ‘Y’ says it all. Appellant was pleading with the respondent “to please for now stop charging monthly interest on my secured overdraft with your Osogbo branch.” How much was outstanding, he neither pleaded nor proved. Having not discharged the onus placed on him to prove his case, the court below was right in holding the appellant indebted to the respondent.

On the whole, the appellant’s appeal against the dismissal of his case fails and is hereby dismissed. His appeal against the judgment allowing the counter claim succeeds. However, it having been found that the appellant is in fact indebted to the respondent, dismissing the counter-claim will constitute a travesty of justice. Following in the footsteps of the Supreme Court in Yesufu v. A.C.B. Ltd. (1976) 1 All N.L.R. 328. I hereby, non suit the respondent in its counter-claim. There shall be no order as to costs.

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Other Citations: (2005)LCN/1822(CA)