Wema Bank Plc V. Alhaji Idowu Fasasi Solarin Osilaru (2007)
LawGlobal-Hub Lead Judgment Report
JOHN INYANG OKORO, J.C.A.
This is an appeal against the Judgment of Saula J. of the Ogun State High Court while sitting at Sagamu in suit No. HCS/53/2000 dated 29th July, 2004 wherein he upheld the respondent’s claim in its entirety and dismissed the Appellant’s counter-claim. At the lower court, the respondent therein as plaintiff took out a Writ of Summons against the appellant as defendant wherein he sought the under-mentioned reliefs viz:-
(1) A declaration that the defendant’s seizure and detention of the sum of five million, seven hundred and ninety three thousand, three hundred and nineteen naira, sixty kobo (N5,793,319.60k) the insured sum paid to the defendant on behalf of the plaintiff in respect of the latter’s buildings at 147 Akarigbo Street, Sabo, Sagamu for the purposes of repairing and renovating the plaintiffs buildings that were destroyed and damaged by fire and burglars on the 18th day of July, 1999 during communal clash in Sagamu is unlawful and illegal.
The plaintiff also claims interest on the said sum of N5,793,319.60k at the rate of 21% monthly from the defendant from 1st May 2000 to 6th day of June 2000 and at the same interest rate of 21% monthly from 7th day of June, 2000, until final determination of the case.
(2) A declaration that the conversion by the defendant to its own use of the insured sum of N5,793,319.60k paid to it on behalf of the plaintiff for the purposes of repairing and renovating plaintiffs building is improper, unlawful and in bad faith.
(3) An order that the defendant’s continuous withholding of the sum of five million, seven hundred and ninety three thousand three hundred and nineteen naira, sixty kobo (N5,793,319.60k) insured sum paid through it for the repairs, replacement and renovation of plaintiffs damaged properties at 147 Akarigbo Street, Sabo, Sagamu is wrongful and irregular and defendant should repay same to plaintiff.
Upon the receipt of the statement of claim which also contained the above reliefs, the Appellant filed his defence and counter claim.
Paragraph 25 of the said counter claim states:-
“Whereupon the defendant counter claims against the plaintiff for:-
(i) The payment of it sum of N172,335,84k (one hundred and seventy two thousand, three hundred and thirty five naira, eighty- four kobo) as at 17th May, 2000 being the outstanding balance of the credit/overdraft facility granted at the plaintiffs behest of which repayment was secured by a legal mortgage on the plaintiffs property situate and being at 147 Akarigbo Street, Sabo, Sagamu, Ogun State of which the plaintiff has now defaulted in paying.
(ii) Interest on the said sum of N172,335,84k (one hundred and seventy two thousand, three hundred and thirty five naira, eighty-four kobo) at the rate of 34% per annum from the 17th of May, 2000 until liquidation of the entire debt.
(iii) A declaration that the defendant is entitled to sell the plaintiffs building situate and being at 147, Akarigbo Street, Sabo, Sagamu, Ogun State pledged/mortgaged as security by the plaintiff for the overdraft/credit facility granted by the defendant to the plaintiff, and
(iv) An order for the sale of the said property.
The synopsis of the evidence adduced at the court below is that the Respondent is a customer of the Appellant bank and in March, 1998, the Respondent took two facilities from the Appellant as follows:-
(1) Term loan
(2) Overdraft facility
For the term loan, there was one month moratorium and thereafter the Respondent was to liquidate the loan in 35 months at a monthly installment of N100,000.00. The overdraft facility was tenured for six months to expire September 1998. The term loan was to expire in April 2001 but subject to a default clause as stated in the offer letter Exhibit J. The Respondent’s real properties situate at 147 Akarigbo Street, Sabo, Sagamu were used as collateral to secure repayment. The said properties were insured against fire and burglary. The Respondent was in default of both the overdraft and loan and on 15th June, 1999, the Appellant by Exhibit C wrote a final demand request for the payment of the sum of N4,847,693.63k and threatened legal action against the respondent. A month after and specifically on 18th July, 1999 a communal clash broke out in Sagamu and the Respondents properties secured for the loan were looted and burnt. The insurance company paid through the Appellant the sum of N5,793,319.60k for the repairs and renovation of the damaged property. The Respondent demanded for the payment of the insured sum but the Appellant refused to pay and further demanded for an outstanding sum of N172,335,84k from the Respondent after taking the N5,793,319.60k to defray the Respondent’s indebtedness to her.
Hearing commenced in earnest. The Respondent testified for himself and called no witness. The Appellant called one witness. The learned trial judge assembled the evidence and at the end found for the Respondent in its entirety and dismissed the counter-claim of the Appellant.
Aggrieved by the decision of the lower court, the Appellant has appealed to this court. The Appellant filed notice of appeal dated 18/10/2004 containing eight grounds of appeal and in keeping with the practice obtained in this court, briefs were filed and exchanged by the parties. The Appellant’s brief of argument was settled by his counsel Chief Wale Taiwo and in the said brief, four issues for the determination of this appeal were identified and the issues are:-
(i) whether the Respondent proved by credible evidence his entitlement to the reliefs granted by the learned trial judge.
(ii) whether the learned trial judge was right to have ordered the repayment to the Respondent of the insurance sum of N5,793,319.60k when no such relief is claimed on the statement of claim of the Respondent.
(iii) whether the Appellant was right to have appropriated the insurance sum by paying same into the account of the Respondent to defray his due indebtedness to the Appellant.
(iv) whether the Appellant adduced sufficient evidence in support of its counter-claim as to entitle it to judgment on the counter-claim
The learned counsel for the Respondent; Tunde Ologunde who settled the brief, on the other hand opined that three issues only are discernible for the determination of this appeal viz:-
(i) whether the Appellant is entitled to appropriate the insurance claims paid to her on behalf of the Respondent for the specific purposes of repairing and replacing the Respondent’s property destroyed and looted by fire and burglars to offset Respondent’s debt.
(ii) whether the Appellant has proved its counter-claim by credible evidence.
(iii) whether the Appellant is entitled to set off the indebtedness of the Respondent from the insurance funds meant for the repairs and replacement of the Respondent damaged properties and hold on the excess funds of the Respondent.
Issues 1 and 2 in the Respondent’s brief are in all fours with issues 3 and 4 in the Appellant’s brief respectively and the 3rd issue of the Respondent is a repetition of his first issue.
In the circumstance, I intend to be guided by the four issues couched in the Appellant’s brief in the determination of this appeal.
On the first issue, it was submitted on behalf of the Appellant that it was the duty of the Respondent to prove that the Appellant:-
(i) seized and detained the sum of N5,793,319.60k the insured sum from him and that such seizure and detention (if any) was unlawful and illegal.
(ii) converted the said sum of N5,793,319.60k, the insured sum to its own use and that the conversion (if any) was improper, unlawful and in bad faith.
(iii) is withholding the insured sum continually.
Learned Appellant’s counsel contended that the Respondent had failed to establish the seizure, detention and conversion of the money since he stated on p.37 line 13 of the record of appeal that the insurance company paid N5,793,319.60k into his account, meaning that the money did not get into the hands of the respondent to be seized. Furthermore, that the burden is on the plaintiff to prove his claim before the court and not to rely on the weakness of the defendant’s case. The burden, he submits does not shift to the defendant wherein he cited the cases of Combined Trade Ltd v. All States Trust Bank Ltd & anor (1998) 2 NWLR (pt 576) 56, Elias v. Disu (1962) All NLR 214. Learned counsel urged the court to resolve this issue in favour of the appellant.
In reply to this issue, the learned counsel for the Respondent submitted that contrary to the submission of the appellant the Respondent discharged the onus of proof imposed on him by law by making a demand from the Appellant to turn over the insurance sum to him but the Appellant declined to accede to the request. That seizure and detention were completed when the Appellant held back and refused to pay to the Respondent the insured sum and that conversion was proved when the Appellant commuted to her use the insured sum. Also that withholding is continually proved when the appellant refused to pay on demand.
It is now settled that the relationship between a banker and customer where a bank accepts money either in current or deposit account from its customer, is a relationship of debtor and creditor. The relationship is essentially contractual. See Balogun v. National Bank of Nigeria Ltd (1978) 11 NSCC,35, Afribank Nig Plc v. A.I. Investment Ltd (2002) 7 NWLR (pt 765), 40. Now, in view of the nature of relationship between the banker and its customer and of the contract that exists between them, the customer has neither the “custody” nor “the control” of monies standing in his credit in an account with the bank. What the customer has is a contractual right to demand repayment of such monies. See Purification Tech. Nig. Ltd. v. A.G. Lagos State & 31 0rs (2004) 9 NWLR (pt 879), 665; Yusuf v. A.C.B. (1981) 1 SC 74, (1981) 12 NSCC 36.
It seems to me therefore that the customer’s monies in the hands of the banker are not in the custody or under the control of the customer. Such monies remain the property in the custody and control of the banker, and payable to the customer when a demand is made. This is so because if anything happens to the money thereafter e.g. theft of the money, it is the banker and not the customer that bears the loss. Where the customer makes a demand e.g. by issuing a cheque and the banker refuses to pay, it is my view that the customer’s cause of action is in damages under their contractual relationship. See Afribank (Nig) Plc v. A.I. investment Ltd (supra).
In the instant case, and having regard to the position of the law above stated, can it be said that the Appellant seized, detained, converted and withheld the insured sum paid into the Respondent’s account, by the insurance company? Seizure is the act of suddenly taking control or possession of something. (See Longman’s Dictionary of Contemporary English – New Edition). In my respectful view, I am inclined to say that the bank cannot seize, detain or convert something which is under its control and possession.
It was the claim of the Respondent at the court below that the Appellant converted his money paid into his account by the insurance company. It was therefore incumbent upon him to prove that conversion. The burden was on the Respondent who was plaintiff to show that he is entitled to the relief sought from the court.
The burden does not shift see Elias v. Disu & ors (1962) All NLR 214, Combined Trade Ltd v. All States Trust Bank & anor (1998) 12 NWLR (pt.576) 56. A plaintiff is not to rely on the weakness of the defendant’s case but rather on the strength of his own case as proved in court.
It has been held by this court that money in specie, for example, coins and notes can be converted while money in abstract, for example, money in a bank account cannot be converted. Thus, the former can be the subject in a claim for detinue or conversion, the latter cannot be. See Afribank Nig. Plc v. A. I. Investment Ltd (2002) 7 NWLR (pt 765) 40 at 63 paragraph D-F; p.64, paragraph A).
In the instant case, the subject matter of the Respondent’s claim is money in the abstract. In the circumstance, it cannot ground an action for detinue or conversion.
Where a banker refuses ‘to pay a customer’s cheque as in the instant case, when the banker holds in hand an amount equivalent to that endorsed on the cheque belonging to the customer, such an act of refusal amounts to a breach of contract. An action lies in damages for breach of contract. Definitely, not in conversion or detinue.
It is my humble view therefore that the Respondent failed to establish his case at the lower court as I have held that it was unimaginable for the Appellant to convert money adjudged to be his “property” or to even seize money under his control, possession and custody. I therefore resolve the first issue in favour of the Appellant.
On the second issue, the learned counsel for the Appellant submitted that the learned trial judge was wrong to order the repayment of the insurance sum of N5,793,319.60k to the Respondent when there was no such claim before the court. That the claim of the Respondent as contained in the statement of claim is vague and although the one contained in the Writ of Summons is proper, it cannot be relied upon since the statement of claim supercedes the Writ. Learned counsel relied on the cases of Attorney General Ogun State & 4 ors v. Attorney General of the Federation (2002) 12 SCN] 191, Isamotu Otanioku v. Lawal Mustapha Alli (177) 5-12 SC, 9 at 10. Learned counsel then urged the court to resolve this issue in Appellant’s favour.
In his submission, the learned counsel for the Respondent opined that there is nothing in the record of appeal to support this issue that the learned trial judge ordered the repayment to the respondent of the insurance sum of N5,793,319.60k. He submitted further that both the grounds of appeal and the issue formulated there-from must be held incompetent not being predicated upon the decision of the court wherein he cited the case of The Registered Trustees, Pentecostal Assemblies of the World Inc. v. The Registered Trustees of the African Apostolic Christ Church (2003) FWLR (pt 150) page 1795. In the circumstance, he urged this court to discountenance this issue.
I have taken a well informed position to consider first, the legality or otherwise of issue No.2 of the Appellant’s brief and ground two of the grounds of appeal in the notice of appeal which the issue is distilled from. For ease of reference, I hereby set out ground No 2 in the notice of appeal on p. 91 of the record and the issue distilled from it as follows:-
“GOUNDS OF APPEAL
2. The learned trial judge lacked jurisdiction to grant the Appellant claims on the Writ in its entirety as set out in her judgment when:-
(a) Part of the reliefs claimed on the Writ of Summons as reproduced by the learned trial judge in her judgment are not claimed in the statement of claim.
(b) Statement of claim supercedes the Writ of Summon”.
Issue No.2 distilled from the above grounds of appeal states:-
“whether the learned trial judge was right to have ordered the repayment to the Respondent of insurance sum of N5,793,319.60k when no such relief is claimed on the statement of claim of the Respondent”.
The cardinal principle in the practice of brief writing in our legal system is that for an issue formulated for determination to be valid, it must of necessity derive from the grounds of appeal which in turn must relate to the decision of the court against which the appeal is lodged. A ground of appeal and/or issue for determination which does not derive from the judgment appealed against is incompetent. See Kano ile v. Gloede and Hoff (Nig) Ltd. (2005) 4 FWLR (pt.278), 69, Bicon Agrochemicals Nig. Ltd. v. Kuku Holdings Ltd. (2000) 14 NWLR (pt 691) 493, Bankole v. Pelu (1991) 8 NWLR (pt 211) 523.
I need to emphasize that any appeal to this court which is based on grounds and issues that had not been heard and determined by the court below in the judgment appealed against cannot be heard by this court. It was the view of the Supreme Court in Saraki v. Kotoye (1990) 4 NWLR (pt 143) 144 that it is a well established proposition of law in respect of which there can hardly be a departure, that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision.
And in Babalola v. The State (1989) 20 NSCC 97, at 294, Oputa JSC held as follows:-
“An appeal presupposes the existence of some decision appealed against. In the absence of such a decision on a point, there cannot possibly be an appeal against what has not been decided against a party. Learned counsel for the appellant should be well advised to know that they can only urge on appeal points ensuing from a decision of the trial court on an issue submitted to it for determination. If no such question had been submitted, it cannot form the basis of a ground of appeal or an issue for determination in a brief’.
See also Gomwalk v. Military Administrator of Plateau State (1998) 6 NWLR (pt 555)653.
In the instant case, I have perused carefully the judgment of the learned trial judge on pp. 66-90 of the record of appeal and there is no order made against the appellant to pay to the Respondent the insurance sum of N5,793,319.60k. The learned trial judge merely said “I therefore hold that the plaintiff claim succeeds on its entirety”. Ground 2 On the notice of appeal as couched appears to have surfaced from the blues as it has no root in the decision of the learned trial judge.
Issues were not joined on it in the court below and the learned trial judge did not make any pronouncement on it. No order was made for the repayment of the sum ofW5,793,319.60k in the judgment of the court below. A valid ground of appeal is against the orders made by the trial judge rather than the reasons given in making the order. See Ameokaja v. Eyiowuowi (1961) All NLR 805.
As aptly observed by the learned counsel for the respondent, no reference was made to the order of the learned trial judge in the judgment by the learned counsel for the appellant. In the circumstance, ground of appeal No 2, not having ensued from the decision of the learned trial judge and the issue No. 2 distilled there-from, are hereby held incompetent and are accordingly discountenanced. See All States Trust Bank v. King Davidson Enterprises (Nig) (2000) NWLR (pt 681) 298, Obatoyinbo v. Oshatoba (1996) 5 NWLR (pt 450) 531, Bakule v. Tanerewa Nig. Ltd. (1995) 2 NWLR (pt 380) 728. This issue is, in the circumstance resolved against the appellant.
Having so held, that could have been sufficient for that issue but since this is an intermediate court, I wish to touch albeit briefly the submission of the learned counsel for the appellant that the reliefs contained in the Writ of Summons filed by the respondent differs materially from that in the statement of claim of the respondent. This argument relates to relief No.3 both in the Writ of Summons and the statement of claim. Whereas in the Writ it is rendered as follows:-
“3. An order that the Defendant’s continuous withholding of the sum of N5,793,319.60k (five million seven hundred and ninety three thousand, three hundred and nineteen naira, sixty kobo) insured sum paid through it for the repairs, replacement and renovation of plaintiff’s damaged properties at 147 Akarigbo Street, Sabo, Sagamu is wrongful, and irregular and defendant should repay same to plaintiff’,
it is rendered inconclusively in the statement of claim.This is how it is written:-
“3. An order that the Defendant’s continuous withholding of the sum of N5,793,319.60k (five million seven hundred and ninety three thousand, three hundred and nineteen naira, sixty kobo) insured sum paid through it for the repairs, replacement and renovation of plaintiff’s damaged properties at 147 Akarigbo Street, Sabo, Sagamu”.
Definitely, the rendition of this relief in the statement of claim is vague and inconclusive. Since it is the statement of claim that supercedes the Writ, it is the rendition in the statement of claim which is vague that is to be considered by the court. It is trite that for a claim to be considered, it must be straight forward, factual and unequivocal and should not be vague as no court will grant a relief which is vague. See Attorney General of Ogun State & 4 Ors v. Attorney General of the Federation (2002) 12 SCNJ 191. I agree that the statement of 11 claim supercedes the Writ and that relief No.3 on the statement of claim supercedes the one on the writ. See Isamotu Otanioku v. Lawal Mustapha Alli (1977) 5-12 SC 9.
As I see this relief on the statement of claim, it seems to be a mistake although counsel did not say so. Having properly couched the relief in the writ, I do not know why it was rendered inconclusive in the statement of claim. It has long been held that it is unfair and unjust to punish litigants for the mistake of their counsel and that courts should as much as it practicable refuse to be bug down by mere technicalities since it leads to injustice. See Nneji v. Chukwu (1988) 3 NWLR (pt 81) 184. I think in circumstances such as this, the court should rise to the occasion by refusing to be weighed down by such mistakes in order to do substantial justice to the parties. This does not take away from counsel the need to be thorough in the drafting of claims and the reliefs therein. Counsel should not be heard to say it was his secretary who made the slip as all documents emanating from his chambers and signed by him must be proof read by him. Be that as it may, and not encouraging sluggishness in brief writing, courts must always be focused in doing substantial justice to the parties, the blunders of counsel, notwithstanding.
I intend to treat the next issue which I consider to be the crux of this appeal with issue Nos. 1 and 3 of the Respondent’s brief together as they are intrinsically the same. Relying heavily on clause six of Exhibit J, the agreement between the parties, learned counsel for the Appellant submitted that the interest of the bank which was noted on the insurance policy was the repayment of the loan facility and that it was proper for the bank to take the insured sum paid into the bank to defray the Respondent’s indebtedness to the bank. Also that by clause 10 of Exhibit J, the entire debt had become due for payment since the Respondent had defaulted in the repayment schedule. He then urged the court to resolve this issue in the Appellant’s favour.
The Respondent’s learned counsel disagreed with the above submission and opined that the Appellant – banker has no right to appropriate a customer’s fund kept with it for a specific purpose and in the instant case, for the purpose of repairing the Respondent’s damaged properties. That no provision is made in Exhibit J to govern the disbursement of the insured sum in the event of occurrence of mishap as happened in this case. Relying on Pagets’ Law of Banking, 9th Edition p. 414 lines 17 & 18, he urged this court to hold that money meant for a specific purpose are immured from lien or even set-off. He then urged the court to resolve this issue against the Appellant.
One thing has to be made clear from the on set and that is, that the Respondent had admitted owing the Appellant the sum of N4,847,693.63k contained in Exhibit K, the final demand request for the payment of the said sum which letter is dated the 15th of June, 1999. Even though the Respondent has admitted owing this sum, was the Appellant entitled to appropriate the insurance sum to defray the debt? Having held earlier that the relationship between the parties is contractual, I think the answer is to be found in Exhibit J, the agreement evidencing the transaction as the principle of sanctity of contract enjoins courts to deal carefully with agreements as reached by the parties. See Afribank Nig. Plc v. A.I. Investments Ltd. (2002;) 7 NWLR (pt 765) 40.
Exhibit J has eleven clauses and I intend to set out the relevant clauses that will assist in the determination of this issue. These are clauses 5, 6, 8, and 10. Clause 5 relates to the duration of the facility and has two sub heads as follows:-
“5(a) the duration of the overdraft facility is six (6) months. Therefore, the expiry date is 18th September, 1998.
(b) the duration of the term loan is 36 months inclusive of one (1) month moratorium. Therefore, the expiry date is April 2001 when the facility is expected to be fully liquidated”.
Clause 6 deals with repayment programme as follows:-
“(6) The facility shall be repaid in 35 equal monthly installmental payment of N100,000.00 (one hundred thousand naira) with effect from May 1998”.
The 8th clause has to do with security and states as follows:-
“(a) Legal mortgage on landed property at 147, Akarigbo Street, Sabo, Sagamu registered as 18/18/1461 Abeokuta Lands Registry Valued N4million taken
(b) Bill of sale on three cold rooms situate at 147 Akarigbo Street, Isale Oko Sagamu and 76, Idi-Iroko Road, Owode, Egbeda respectively valued N4 million taken
(c) The Bank will take insurance policy on the mortgaged property with a reputable insurance company and our interest will be noted on the policy while the cost of the policy will be debited into your account “.
Clause 10 deals with default as follows:-
“upon any default by you in the repayment when due of the principal sum or interest or any breach or failure by you to perform any other term or condition of this agreement binding upon it, then in any such event, all the existing indebtedness to the Bank shall become forthwith due and payable on demand”. (Italics mine for emphasis).
In interpreting this agreement, the learned trial judge had on page 86 of the record of appeal held “our interest” and “your account” in clause 8(c) to mean that of the Appellant and the Respondent respectively. The learned counsel for the Appellant had argued strongly that the interest of the Appellant endorsed on the insurance policy is the repayment of the facility granted to the Respondent. Learned Respondent’s counsel had urged us to hold that the bank’s interest on the insurance policy has nothing to do with the repayment of the facility but its interest on the mortgaged properties. What did the parties intend this interest to mean? The Supreme Court has cautioned in Odutola v. Paper-sack Nig. Ltd. (2006) 28 NSCQR 470 at 493-per Tobi, JSC as follows:-
“The most important and pungent word for my purpose is “understood”. Parties to an agreement may mutually but wrongly come to an understanding as to the legal content of it. That notwithstanding, a court of law can only interpret the agreement strictly in its legal content and arrive at a conclusion on the law and the law alone in respect of it. A court of law cannot construe the agreement to convey the meaning “as understood” by the parties, if it is different from the real legal meaning of the agreement”. It is trite that where, the language of an agreement is clear and unambiguous, the only interpretative jurisdiction of the court is to make pronouncement on the clear and unambiguous agreement and agree with them. The court is not to interfere at all. See First Bank of Nigeria v. Songonuga (2007) 3 NWLR (pt 1021) 230, Obikoya v. Wema Bank Ltd (191) 7 NWLR (pt.201) 119.
It is my well considered view that the interest of the bank endorsed on the insurance policy is the repayment of the facility granted the Respondent. When the Respondent defaulted in the repayment schedule, clause No 10 of the agreement i.e. Exhibit J had come into effect meaning that the totality of the indebtedness had become due and payable on demand. At the time a bank is granting a loan or overdraft facility to its customer, what is paramount in its mind, which makes it imperative to ask for and receive assurances or security for the loan, is that its interest which is the repayment of the facility must be protected. The bank’s interest on the mortgaged property cannot be anything other than security for the repayment of the loan.
Learned counsel for the Respondent cited and relied on Pagets’ Law of Banking, 9th Edition p. 414 lines 17-18 to say that the Appellant had no right to appropriate that insurance sum paid into it for the Respondent. The learned Author has stated on p. 414 lines 17-18 of the book referred above thus:-
“Money paid in to meet bills accepted payable at the banker’s or for any other specific purpose, and so accepted, are immune even from set-off’.
What I understand this to mean is that monies paid into bank for a customer which a third party is to be a beneficiary, such monies are immuned to a lien or even a set-off. It cannot by any stretch of the imagination include monies which the customer/debtor is the sole beneficiary. And in the instant case, the money was paid in respect of the mortgaged property which the Appellant has substantial interest and which such interest was endorsed on the insurance policy. In the circumstance, I am strongly persuaded that the Appellant was right to appropriate the insured sum paid in respect of the damaged mortgaged property. My only disagreement is on the amount which the Appellant has appropriated. Generally, a debt is payable either on demand, or on notice given or upon any other condition agreed upon by the parties. It is also an implied term in the relationship between a banker and its customer that there should be no right of action for the repayment of an overdraft until there has been a demand or notice given. See Ishola v. S.G.B (Nig.) Ltd. (1997) 2 NWLR (pt 488) 405, B.O.N v. Akorede (1995) 1 NWLR (pt.378) 736, NDIC v. Oranu (2001) 18 NWLR (pt 744) 183.
Accordingly, no cause of action can arise in this type of transaction except and until there is a demand or notice given. It is even clearly written in clause 10 of Exhibit J reproduced above that the” indebtedness to the Bank shall become forthwith due and payable on demand” (Italics mine)
In the circumstance of this case therefore, only the sum of N4,847,693.63k as contained in Exhibit K, final demand notice is due and payable and as such only this amount can presently be appropriated by the Appellant. Any other indebtedness by the respondent to the appellant thereafter must be specifically demanded in accordance with the legal position postulated above.
I have reached this conclusion since even the Respondent has admitted owing this amount and what is admitted needs no further proof. See Habib Nigeria Bank Ltd. v. Gifts Unique Nig. Ltd. (2004) 15 NWLR (pt 896) p. 405, Oyekanmi v. NEPA (2000) 15 NWLR (pt 690) 414. In the final analysis, I resolve this issue in favour of the appellant in part.
The next and final issue is whether the appellant adduced sufficient evidence in support of its counter claim as to entitle it to judgment. This is also issue No. 2 in the Respondents brief. On this, the learned counsel for the Appellant submitted that the Appellant having shown to the court that the sum claimed on the counter claim was outstanding against the Respondent after crediting his account with the insurance money and the Respondent having admitted same, the Appellant had discharged the onus placed on it and that the court below ought to have given judgment for the Appellant on the counter claim.
The learned counsel on the part of the Respondent faulted this argument and submitted that the Appellant failed woefully to prove the counter claim at the court below. That apart from the fact that the Appellant did not lead evidence to prove the counter claim; he did not make any demand for the sum claimed. He urged the court to resolve this issue against the Appellant.
I need to say at this stage that a counter-claim, which is a claim presented by a defendant in opposition to or deduction from the claim of the plaintiff is a distinct, separate and independent action from the action in which it is raised. (See Air Via Ltd v. Oriental Airlines Ltd (2004) 9 NWLR (pt 878) 298, Oduwole v. L.S.D.P.C. (2004) 9 NWLR (pt 878) 382, N.B.N. Ltd. v. A.T Engineering Co. Ltd (2006) 16 NWLR (pt 1005) 210.
Now apart from tendering Exhibit V-V3, statement of account in court, the Appellant did not do anything more than that to establish its claim on the counterclaim at the court below. It is trite that a bank statement of account is not sufficient explanation of debit and lodgments in a customer’s account to charge the customer with liability for the overall debit balance shown in the statement of account.
Any bank which is claiming a sum of money on the basis of the overall debit balance of a statement of account must adduce both documentary and oral evidence to show how the overall debit balance was arrived at. See Yusuf v. A.C.B (1986) 1-2 SC 49, Habib Nigeria Bank Ltd. v. Gifts Unique Nig. Ltd (supra). Let me emphasize once again that investigation is not the function of a court. Therefore, it is not the duty of the court to embark on a voyage of discovery. In the instant case it was not sufficient for the DW1 to dump the statement of accounts on the court without explaining clearly the entries therein particularly since the debt is constituted by interest charged after the final demand notice i.e. Exhibit K for the sum of N4,847,697.63k. See First Bank of Nig. Plc v. A. Mamman Nig. Ltd. (2001) FNLK (pt 31) 2890.
I think the counter claim is not yet ripe for filing in court. After the demand for the sum of N4,847,697.63k in Exhibit K, any further sum to be claimed from the Respondent must first be demanded as is usual and customary in banking parlance. Before a demand notice is made, no cause of action can arise. See NDIC v. Oranu (2001) FWLR (pt 55) 1974. In the circumstance of this issue, I am in agreement with the learned counsel for the Respondent and the learned trial judge that the Appellant failed to prove his counter claim as required by law. By section 38 of the Evidence Act, entries in books of account, regularly kept in the course of business are relevant whenever they refer to a matter into which the court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.
Banks should take note of this provision and be guided accordingly. It is on this note that I resolve this issue against the Appellant.
In the final analysis, this appeal is meritorious and is hereby allowed in part. The judgment of the learned trial judge is hereby set aside in part. Parties are to bear their respective costs in view of the outcome of this appeal.
Other Citations: (2007)LCN/2365(CA)
