Unity Life & Fire Insurance Company Ltd. V. International Bank Of West Africa Ltd (2001)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C.

In the Lagos Judicial Division of the High Court of Lagos State, the plaintiff instituted an action claiming, jointly and severally, against the defendants the sum of N238,203.27. This amount was said to be due and payable by the defendants to the plaintiff as at the 28th February, 1982 as per the plaintiff’s amended statement of claim. The said amount comprised the principal amount lent, interest at the rate of 11 1/2% and other Bank charges outstanding against the 1st defendant as at the 25th February, 1982 as reflected in the 1st defendant’s statement of account with the plaintiff Bank. The transaction was secured by a Deed of Guarantee executed by the 2nd defendant in favour of the plaintiff.

Pleadings were ordered in the suit and were duly settled, filed and exchanged.

The brief facts of the case are that the 1st defendant applied for and was granted some loan/overdraft facility by the plaintiff Bank to the tune of N140,000.00 with interest at the rate of 11 1/2% to purchase a Jetty at Warri. The 2nd defendant agreed to and duly guaranteed the overdraft extended by the plaintiff to the 1st defendant. The 1st defendant utilized the said facility and as at the 28th February, 1982 became indebted to the plaintiff in the sum of N238,203.27 as claimed. Both defendants having failed or neglected to liquidate the debt in spite of repeated demands, the plaintiff was obliged to file this action.

The defendant’s position was a general denial of the plaintiff’s claim.

At the subsequent trial, one witness testified on behalf of the plaintiff and tendered several documentary exhibits. These included the 1st defendant’s statement of account with the plaintiff Bank, Exhibit 5. Exhibit 5 was tendered by the plaintiff without any objection by both defendants and was accordingly admitted in evidence by consent.

At the close of the plaintiff’s case, both counsel for the defendants elected not to call any evidence. It must also be pointed out that both defendants had earlier declined to cross-examine the plaintiff’s sole witness even though his testimony was strictly in line with the averments in the plaintiff’s statement of claim. Accordingly, learned Counsel for the plaintiff at the close of the case for both parties addressed the court.

In their reply, learned Counsel for the defendants submitted that there was no proof of the amount claimed by the plaintiff as Exhibit 5, the 1st defendant’s statement of account with the plaintiff was inadmissible in evidence for non-compliance with the provisions of section 96(1)(h) and 96(2)( e) of the Evidence Act, Cap 62, Laws of the Federation of Nigeria and Lagos 1958. This contention found favour with the learned trial Chief Judge, Johnson, C.J. who was of the view that there was failure on the part of the plaintiff to establish that Exhibit 5 was examined with the original entry in the plaintiff’s ledger. He therefore held that this lacuna in the evidence of the plaintiff rendered the document inadmissible.

Said he:-

“There is in this case no evidence of the requisite examination of the copy made with the original and a confirmation of its correctness. This failure to my mind is fatal to the admission of Exhibit 5 which is hereby rejected.”

He, however, proceeded on the basis of the other documentary evidence before the court to hold that the plaintiff had established its claim against both defendants in the sum of N139,351.39. Referring to the said documentary evidence, the learned Chief Judge commented:-

“The above correspondence in my considered view constitute an admission by both defendants of their indebtedness to the plaintiff, at least, in the sum of N139,351.39. Exhibit 4, the guarantee executed by the 2nd defendant and not disputed or challenged in anyway, covers the sum of N140,000.00 up to 24.8.81. The balance of N139,351.39k represents the total indebtedness up to 11.6.81 as shown in the series of correspondence earlier referred to.

It is therefore my conclusion that there is enough admissible evidence establishing the indebtedness of both defendants to the plaintiff jointly and severally in the sum of N139,351.39k. I hereby enter judgment in favour of the plaintiff jointly and severally against both defendants, in the sum of N139,351.39K with costs to be assessed.”

No finding or award was made in respect of the plaintiff’s claim for interest and other bank charges.