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In The Supreme Court of Nigeria

On Friday, the 4th day of March 1988

 

Before Their Lordships

 

Kayode Eso

......

Justice, Supreme Court

Augustine Nnamani

......

Justice, Supreme Court

Muhammadu Lawal Uwais

......

Justice, Supreme Court

Abdul Ganiyu Olatunde Agbaje

......

Justice, Supreme Court

Philip Nnaemeka-Agu

......

Justice, Supreme Court

 

SC. 69/1986

 

 

Between

 

Oguma Associated Company (Nigeria) Limited

.......

Appellant

 

And

 

International Bank for West Africa Ltd

.......

Respondent

 

 

Judgement of the Court

delivered by

Abdul Ganiyu Olatunde Agbaje, J.S.C.

 

The plaintiff Bank, International Bank for West Africa Ltd sued the Defendant Company Oguma Associated Company (Nig.) Ltd in a Warri High Court in Bendel State. By its original writ of summons filed in May, 1978, the Plaintiff Bank claimed against the Defendant Company the sum of N1,55,695.46 (One Million, One Hundred and Fifty Five Thousand Six Hundred and Ninety Five Naira, Forty Six Kobo) being balance of money had and received by the Defendants for their use at their own request, by way of loan, overdraft, accommodation and or facilities from the Plaintiffs who are Bankers. Pursuant to an order of Court made by the learned trial Judge Agege J. the Plaintiff bank was allowed to amend the claim against the Defendant Company to read the sum N1,542,294.32 and the sum of money was said to the be due from the Defendant Company to the Plaintiff bank as at 28th January, 1981 on the loan transactions between the plaintiff and the Defendant and which gave rise to the action which the former instituted against the latter in 1978 The order to amend was made in spite of the opposition of Counsel for the Defendant Company to the application to amend.

 

Pleadings were ordered, filed and delivered. There were amendments to the pleadings originally filed. Since once pleadings are amended, what stood before amendment is no longer material before the court and no longer defines the issues to be tried (See Warner v Sampson (1959) 1 K B at 321 this case now before us on appeal can be said to have proceeded to trial on the amended statement of Claim filed in May, 1981 and the amended Statement of Defence filed in February, 1981.

 

At the trial the plaintiff Bank called four Witnesses to testify in its behalf. The Defendant Company offered no evidence at all. In the course of his evidence P W 1 one Chamberlain Obibi, an Account Assistant Manager of the Plaintiff Bank at warri testified as follows:

 

"I know the plaintiff. I know the Defendant Company. I resumed duty in Warri in March, 1979. In the course of my duty I find that defendant account was highly overdrawn. It is our practice to send out statements of accounts to customers. We sent Statements of Account to the defendants. They have four accounts. They are all still in operation. They are now only two in operation. I sent the statements of account to No. 151 Warri Sapele Road. I can see these documents. I have the certified true copies of the statements I sent to that address. No objection admitted and marked as Exhibit G (4 banks of Statement of Account 1976 - 1981) We did not receive any protest from Defendants as to whether they were correct or wrong xx by Kehinde. I joined the Bank in 1979, I did not myself send any of the statements now tendered."

 

So it is clear that Exh. G the four statements of account about which P W 1 spoke were admitted in evidence without any objection to their admissibility.

 

The learned trial Judge in his judgment given in the case on 19th October, 1981 held as follows:

 

"As I see it the claim before the Court is severable, a part relates to the loan of N600,000 secured by mortgages and a contract of guarantee and another part relates to some other advances and/or overdrafts, bank charges and interests. As regards the claim relating to the loan of N600,000 I will act under Order 28, R.3 of the High Court (Civil Procedure) Rules, 1976 of the Bendel State, and enter a non suit in respect thereof, I dismiss the claim in respect of all other advances and/or overdrafts, bank charges and interests."

 

In the course of his judgment the learned trial Judge expunged from the proceedings in this case Exh G which, as I have just said had been earlier on in the case admitted in evidence. He did this because, according to him, exh G could only have been properly admitted in evidence under the provisions of Section 96(2)(e) of the Evidence act. In order to appreciate what the provisions of Section 96(2)(e) of the Evidence act are about it will be necessary to read them along with the provisions of Section 96(1)(h) of the same act. The two provisions are as follows:

 

"96      (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;

 

96        (2)        The secondary Evidence admissible in respect of the original documents referred to in the several paragraphs of subsection (1) 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 books is in 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."

 

The learned trial Judge relying on Yassin v Barclays Bank DCO (1968) NMLR 380 held that since none of the witnesses for the plaintiff bank said anything in evidence as to the conditions precedent for the admissibility of exh G as provided for in Section 96(2)(e) of the Act exh G was inadmissible and therefore was wrongfully admitted in evidence. So, as I have said above, he expunged the whole of exh G from the proceedings.

 

Both the plaintiff Bank and the Defendant Company were dissatisfied with the decision of the learned trial Judge. The plaintiff bank for its part appealed against the whole of the decision. The defendant Company appealed against that part of the decision of the trial Judge which entered a non suit against the plaintiff’s claim against it for the loan of N600,000.00 secured by a deed of Mortgage, contending that the whole of the Plaintiff’s claim should have been dismissed.

 

Both appeals came before the court of Appeal, Benin Division. The Court of Appeal Coram Eboh, JCA., Belgore JCA (as he then was) and Ajose Adeogun, J C A, allowed the Plaintiff Bank’s appeal and dismissed the Defendants Company’s cross appeal. In allowing the plaintiff Bank’s appeal the Court of Appeal held that having regard to the state of the pleadings in the case, the Defendant Company in its statement of defence had not properly controverted the averments of the Plaintiff Bank in its Statement of Claim. It went on to hold that on the evidence before the trial Court quite apart from exh. G which the trial Judge expunged from the record the Plaintiff Bank was entitled to judgment if due regard had been paid to the state of the pleadings by the trial Court. In the end the Court of Appeal entered judgment in favour of the Plaintiff bank for the whole of its claim against the Defendant Company that is N1,542,294.32 which the Court of Appeal held was not severable. However the Court of Appeal held that the trial Court was right in expunging exh G from the proceedings before it. In this regard Ajose Adeogun J.C.A in his lead judgment having considered Section 96 of the evidence Act said As follows:-

 

"For all the above reasons, I do hold that exhibit G at the time it was tendered in evidence, was inadmissible in law for failure to meet the conditions specified in Section 96(2)(e) of the Evidence Law. Closely connected with that conclusion is the question whether the said exhibit G, having been admitted without objection, was properly excluded from consideration by the learned Trial Judge in his judgment."

 

The learned Justice of Court of Appeal then referred to the following cases namely J.A Ajayi vs Olu Fisher (1956) 1 F S C 90, Abolade A Alade vs Salawu J Olukade (1976) 2 S C 183, Cavallotti Govianni v Bonaso Lugi, S C 402/67 unreported judgment delivered on 31/10/69 and Chukwurah v Mathias Ekwuno & Ors. (1952) 14 WACA 59.

 

The last two cases were quoted with approval  in Alade vs Olukade (Supra).

 

Replying on these authorities the learned Justice of the Court of Appeal came to the conclusion that the learned trial Judge was right in using his discretion to exclude Exh G from further consideration in his judgment. In another breath, the leaned Justice of the Court of Appeal said that if the trial court had used Exh G it would not have been open to the Defendant Company to complain about this in the lower Court. For this proposition he relied on the case of Chief Bruno Etim & Ors. v Chief Okon Udo Ekpe & Anor (1983) 3 S C 12 at page 36/37.

 

The Defendant Company is dissatisfied with the whole of the judgment of the Court of Appeal and has appealed against it to this Court. The plaintiff bank for its part has filed pursuant to Order 8 Rule 3 of the Supreme Court Rules 1985 a Respondent’s Notice of Intention to contend that a decision of the Court below be varied and that the judgment of the Court below should be affirmed on the decision as varied. The decision to be varied and the complaint against it are as follows:

 

"The learned Justices of the Court of Appeal erred in law and misdirected themselves on the facts when they held that exhibit G in the proceedings was inadmissible in evidence and was properly expunged from the Record when the said exhibit was properly received in evidence at the trial by consent and could not in a civil suit be therefore expunged.

 

Particulars:

 

(1)        The said exhibit was tendered and admitted by consent i.e. the Appellants having expressly declared that they had no objection to its tender.

 

(2)        the learned Justices of the Court of Appeal failed to note that having consented to its tender the Appellants are estopped from contending later as they did to the contrary.

 

(3)        Exhibit G was not tendered in any event pursuant to Section 96 of the Evidence Act.

 

(4)        Exhibit G was tendered as counter part of the original previously sent to the Appellants.

 

(5)        Exhibit G was not tendered as an extract from the ordinary books of accounts of the bank.

 

(6)        The learned Justices of the Court of Appeal ought to have noted that the exhibit having been certified by the Bank and tendered by its official the provisions of Section 96 of the Evidence Act were in any event satisfied."

 

I will deal first with this notice filed by the Plaintiff bank. In the course of the hearing of this appeal the attention of Counsel of the plaintiff Bank, Mr. Sogbesan, SAN was called to the fact that the lower Court made a categorical finding in respect of Exhibit G to the effect that the trial Court rightly exercised its discretion in expunging it from the proceedings in the case. This finding was contrary to the contention of Counsel for the Plaintiff Bank in the lower Court. In the circumstances, Counsel for the Plaintiff bank, Mr. Sogbesan was asked if the notice filed by him was the correct step to be taken if he wanted the finding in question reversed or varied. He seems to have conceded it that the proper step he should have taken was to have filed a cross appeal against that particular finding in respect of exhibit G at the lower Court about which he is now complaining. I have no doubt however that the correct step Counsel for the plaintiff bank should have taken if he wanted the finding of the Court below on exh G reversed was to have filed a cross appeal against that finding. In saying this, I place reliance on the case of African Continental Seaways Ltd. v Nigerian Dredging Roads and General Works Ltd. (1977) 5 S C 235 at 247 where Irikefe, JSC as he then was delivering the judgment of the Court said.

 

"As we had indicated earlier on in this judgment we find little that calls for criticism in the above reasoning of the learned trial Judge. We were, however, amazed that learned counsel appearing on behalf of the respondents had sought by an application to vary the judgment by which we understood him to mean that the judgment should be supported on grounds other than those shown by the Court of trial, that the findings as to existence of a contract should be set aside. We would like to say here, as we have done in many cases coming before us in this Court that, a party seeking to set aside a finding which is crucial and fundamental to a case can only do so through a substantive Cross appeal and not by an application to vary."

 

So on the notice filed by the Plaintiff bank to contend that the decision of the Court below on the admissibility of exhibit G be varied it is not open to this Court to entertain that contention. So for the purpose of the ultimate decision I will reach in this case it will be taken that rightly or wrongly exh G has been expunged from the proceedings in this case. However by way of obiter I shall express an opinion on the true and correct interpretation of the provisions of Section 96 of the evidence Act. I am constrained to express this view in order that the Courts below will have some guide on the provisions of the evidence act in question.

 

I have reproduced above Section 96 of the Evidence Act. I have also referred to the various cases the Court below referred to on this point.

 

It is trite law that there are certain types of evidence such as hearsay and unstamped and unregistered documents which are inadmissible per se and which cannot form the basis for a decision and an objection to them may be taken at any stage of a trial or on appeal or even at the instance of the Court. See for instance Abowaba v Adeshina 12 WACA 18 at page 20 and Ajayi v Fisher (supra).

 

Section 96 of the Evidence Act makes certain documents admissible under certain condition. With particular reference to the provisions of Section 96(1)(h) and 96(2)(e) copies of entries in a banker’s book are admissible in evidence under certain conditions. So it is clear that these documents do not come within the class of documents which are inadmissible in evidence in any event in law. Idigbe, J.S.C delivering the judgment of the Supreme Court in Alade v Olukade (supra) said as follows at pages 191 – 192 as regard the provisions of Sections 96 of Cap 62 of the Evidence Act.

 

"Now in the case in hand, the documents complained of are exhibits B and B1. In his submission before us, however, learned counsel for the appellant limited his argument to Exhibit B1 and urged that being Secondary evidence these exhibits ought not to have been admitted except in the circumstances provided by Section 96 of the Evidence Act Cap 62 Vol. 1 Laws of the Federation of Nigeria (1958 edition). In our view, it is not now open to learned counsel to take this objection in view of the course taken by the defence (i.e. the appellant’s counsel) in the trial Court. Exh B 1 (a sun-print of a certified copy of the original plan) was admitted in the course of cross Examination of respondent’s witness by learned counsel for the appellant at whose request the document was received in evidence. Exh B is a sun print of a copy of the original plan. It is clear that these documents do not come within the class of documents which are inadmissible in evidence, in any event, in law, under Section 96 of Cap 62 they are admissible under certain conditions. The original of Exhs. B and B1 is not a public document (as defined in section 108 of Cap 62) and Section 96(2)(c) of Cap 62 is therefore in applicable to Exhs. B and B1 (see Minister of Lands Western Nigeria v Dr. Nnamdi Azikwe & Others SC 16.,68 of 31/1/69). No objection was taken by or on behalf of the appellant when exh B was proffered in evidence, and Exh B1 was offered in evidence by and on behalf of the appellant. In our view the appellant by his conduct at the trial in the lower Court, is now precluded from taking this objection. (See Cavalotti Govianni v Bonaso Luigi S C 402/67 of 31/10/69 and Chukwurah Akunne v Ekwuno and others (1952) 14 WACA 590)"

 

Again in Okeke v Odifile (1965) NMLR 113 at page 115 this Court said as follows as regards proof of document.

 

"Secondly the appellant submits that the Judge ought not to have treated the statement contained in the police file as admissible evidence, on the ground that the officer to who it was made was not called as a witness in a criminal case this would be a valid objection, but in a civil case formal proof of a document can always be waived. One of the first questions which a lawyer instructed or the defence in a running down case might be expected to ask his client is whether he had made any statement about the accident and it would have been open to the defence to ask for discovery of any documents on which the plaintiff intended to rely. In our view the appellant must be treated as having waived any objection to the statement, though we would add that the correct course would have been for the witness producing the file to draw attention to the statement, which appears to have been the only thing in the file which was relevant evidence in the case.”

 

This case was referred to by this Court with approval in Thanni v Saibu (1977) 2 S C 89 at pages 112-113. Of course the decision in Okeke v Odifile is subject to the view I have expressed earlier on in this judgment that the document in question is not inadmissible per se.

 

So if I have to decide the point in question I would have held, guided by the authorities I have referred to above, that since exh. G is not inadmissible in any event in law and that it is admissible in evidence subject to certain conditions and since it had already been admitted in evidence without any objection to its admissibility that was the end of the matter as regard its admissibility in these proceedings. If counsel in the case would have been deemed to have waived any objection to the admissibility that was the end of the matter as regards its admissibility of Exh G, a fortiori the court of its own volition could not have properly reopened the admissibility of Exh G. In other words, if I have to decide the point I would have held that the trial Court was wrong in expunging exh G from its proceedings having earlier on the in the case admitted it in evidence without any objection to its admissibility I would equally have held that the lower court was wrong in endorsing what the trial Court did.

 

I cannot agree with the view of the Court below that although counsel for the parties can no longer complain about the admissibility of Exh G after it had been admitted in evidence without objection yet the trial Court of its own volition can in its discretion reopen the issue of admissibility of Exh G. We need only to remind ourselves that in civil proceedings it is the adversary system that operates in our courts. So, it is difficult to see how it can be proper for a court to do what Counsel for the parties cannot do. There is nothing in the case of Chief Bruno Etim & Ors. V Chief Okon Udo Ekpe & Anor (Supra) to which the Court below referred in coming to the decision it reached on Exh G to suggest that the trial Court had a discretion to exclude Exh G from the proceedings before it even if Counsel in the case can no longer raise objection to the admissibility of the document. The relevant part of the decision of this Court in Etim v Ekpe (supra) is as follows:

 

"It is a cardinal rule of evidence, and of practice, in civil as well as in criminal cases, that an objection to the admissibility of a document sought by a party to be put in evidence is taken when the document is offered in evidence. Barring some exceptions where by law certain documents are rendered inadmissible (consent or no consent of the parties notwithstanding) for failing to satisfy some conditions or to meet some criteria, the rule still remains inviolate that where objection has not been raised by the opposing party to the reception in evidence of a document (or other evidence See Chukwura Akunne vs. Matthias Akwuno, (1952) 14 WACA 59 the document will be admitted in evidence and the opposing party cannot afterwards be heard to complain about its admission (See Alade v Olukade (1976) 2 S C 183 at 188-9, for criminal trials see R V Hammond (1941) 3 All E R 318 R v Patel (1951) 2 All E R 29.

 

Such exceptions would, among others, include an

 

(i)         unregistered instrument required by law to be registered (see Abdallah Jamal v Namih Saidi and Another (1933) 11 NLR 86, Elrali and Another v Fawaz (1940) 6 WACA 212 Idowu Alase and Others v Ilu and Others (1965) NMLR 66)

 

(ii)        unsigned deed of grant (or copy or copy of copy thereof) (Abdul Hamid Ojo v Primate Adejobi and Others (1976) 3 S C 65.

 

(iii)       unstamped instrument or document requiring to be stamped, unless it may legally be stamped after execution and the duty and penalties are paid (see; Routledge v Mckay (1954) 1 All E R 855 at 856 1 WLR 615 at 617)."

 

I dare say that the decision in the case is in line with all what I have hitherto been saying. However, what I have just said cannot be the basis of any decision in the appeal now before us since the plaintiff bank had not taken the proper step to challenge the decision of the Court below and the trial court on the admissibility of Exh. G.

 

I can now turn to the consideration of the Defendant Company’s appeal and in considering this appeal it has to be taken for granted that Exh G has been rightly or wrongly expunged from the proceedings in this appeal. The Defendant Company challenged the decision of the lower Court on two grounds of appeal and they are as follows:-

 

"Grounds of Appeal;

 

(1)        the learned Justices of the Court of Appeal erred in law in allowing the appeal when they held that there was such evidence in respect of the averment in paragraphs 10-12 of the further Amended Statement of Claim.

 

Particulars of Error

 

Both the pleadings and oral evidence which do not comply with proof under S 96 of the Evidence Act cannot be said to be sufficient proof.

 

(2)        The learned Justices of the Court of Appeal erred in law in allowing the appeal when the amount claimed was calculated in the amended statement of Claim to include purported monies due after the Writ of Summons was originally filed.

 

Briefs of arguments were filed and exchanged on both sides according to the Defendant Company the issues arising for determination in this appeal are as follows:-

 

“(1)      When proof required under Section 96(1)(h) and 96(2)(e) of the Evidence Act is not forthcoming, should the claim not be dismissed?

 

(2)        When an amended endorsement to a Writ of Summons together with the relevant Statement of Claim, claims a sum of money (or a relief) not due as the date of the original Writ of Summons, should the claim not be dismissed as being incompetent particularly as the amount or relief due as at the date of the original Writ of Summons is not severable or had not been severed from the claim made on the amended Writ of Summons.

 

Counsel for the plaintiff bank challenged, in his brief of argument the right of the Defendant Company to raise ground 2 of the Grounds of Appeal to which issue two above relates. It is the contention of Counsel of the plaintiff bank that the said issue was not raised in the Court of Appeal and so nothing was said about it in that court. He conceded it that the issue was raised at the trial court but was decided against the Defendant Company. It was contended further by counsel for the Plaintiff bank that the Defendant Company never appealed against that decision to the Court of Appeal nor had the Defendant Company sought or obtained leave of this court to raise the point in this court.

 

I will take the later point first. The Defendant Company is contending in ground two of its grounds of appeal that the learned Justices of the Court of Appeal had erred in law in allowing the appeal when the amount claimed was calculated in the amended Statement of Claim to include money said to be due after the date the writ of Summons was filed. Since this ground of appeal raised questions of law alone the Defendant company can appeal as of right on that point to this Court. See Section 213 sub section 2(a) of the Constitution of the Federal Republic of Nigeria 1979. So it is not a case of the appeal of the Defendant Company being incompetent in law on the point at issue. However, a point not taken in the lower court will not except under exceptional cases be entertained in this Court. One such exceptional case is where the point involves a substantial substantive point of law and no further evidence could have been adduced which would affect it. See the case of the Stool of Abinabina v Enyimadu 12 WACA 171. So the point readily for consideration on the objection taken by Counsel of the plaintiff bank to ground two of the grounds of appeal of the Defendant Company is whether the ground of appeal can qualify as an exception to the general rule that a point not taken in the lower court will not be entertained in this Court for it to be allowed now here.

 

As I have just said the ground of appeal raises wholly and solely questions of law. It is evident, also that no further evidence could have been adduced which would affect it. It is my view too that the ground of appeal raises substantial point of law bordering on the jurisdiction of the trial court to entertain the whole of the plaintiff’s claim against the defendant. For these reasons I will regard the ground of appeal as an exceptional case where this court will entertain the point raised by it although the point was not raised in the lower Court, the court of Appeal.

 

The narrow and substantial point of law raised by the ground of appeal is whether monies which accrued to the plaintiff Bank after the date of the filing of the original writ of summons can be added to the sum claimed in the original writ by way of amendment to the writ. And the point relates to the application sought but the plaintiff Bank at the trial Court in 1981 to include all what was due to it up to 1981 on the overdraft facilities and loans granted to the plaintiff in the writ of summons field in 1978 against the Defendant Company which then claimed the sum due at the time the writ was filed.

 

An amendment duly made takes effect no doubt not from the date the amendments is made but from the date of the original document which it amends. Thus when an amendment is made to the writ the amendment dates back to the date of the original issue of the writ. The writ as amended becomes the origin of the claim and the claim endorsed on it is substituted for the claim originally endorsed. See Sneade v Wotherton etc (1904) 1 K B at 297.

 

The lower court in granting the amendment made the point that there was nothing wrong in making a demand for a debt in 1978 and repeating the same demand in 1981. It appears to me that the point involved in the amendment is more than this. In 1978 the plaintiff was claiming a sum of money due then. The plaintiff by the amendment wanted to increase the claim to include what was due by 1981. Having regard to what I have just said as to the nature and effect of an amendment the position now is whether such an amendment is permissible.

 

It is clear that the plaintiff’s claim is based on the loan agreement it alleges existed between it and the Defendant. The amendment does not seek to introduce a new loan agreement. In other words, the amendment does not constitute the addition of a new cause of action nor does it raise a different case. It amounts no more than a different or additional approach to the same facts based on the same cause of action. The case of The Katcher (No.1) (1968) 1 Lioyd’s Rep 232 is relevant to the point I am now considering. There in an action relating to salvage services it was held that the salvage services constituted a single composite or unitary service and thus there was only one single cause of action in respect thereto. An amendment was sought and allowed in the case to add latter services after the writ was field on the ground that they only extended or gave further particulars of the cause of action already raised.

 

It is not even suggested here that the fresh claim of N325,598.86 sought to be added to the cause of action has become statute barred since the issue of the writ in 1978 that is to say that the claim was statute barred in 1981.

 

The alternative to refusing the application to add the fresh claim was to have left the plaintiff bank with the right to filing a fresh action against the defendant Company in respect of the fresh claim arising out of the original cause of action. This certainly will defeat one of the main purposes of an amendment namely that as far as possible in any proceedings all questions between the parties should be decided so as to prevent multiplicity of actions. See Kutz v Spence (1887) 36 Ch D 770 at 774.

 

So in my judgment the amendment of the debt claimed in 1978 to include the amount due in 1981 on the loan agreement between the parties after the writ was filed granted by the learned trial Judge was in order since it was only additional to the same facts based on the same cause of action in the original writ of summons, and has the effect of preventing multiplicity of actions.

 

Accordingly I reject the contention of counsel for the Defendant Company to us that the claim of the Plaintiff bank for N1,542,294.32 was incompetent as at the date of the original writ of summons.

 

Having disposed of issue 2 as I have just done the way is now clear for me to consider issue 1 on the footing that the sum claimed by the plaintiff against the defendant was N1,524,294.32. The issue raised in issue 1 boils down to this, whether having regard to the state of the pleadings and the evidence before the trial Court the lower Court was right in giving judgement for the plaintiff against the defendant for the amount claimed, bearing in mind that exh. G the Statement of Account pleaded by the Plaintiff has been rejected.

 

I shall take the point of the state of the pleadings first. The relevant portions of the amended Statement of Claim are as follows, cognizance being taken of the fact that the relationship of banker and customer between the plaintiff bank and the Defendant Company was not in dispute;

 

"7.        Between December, 1976 and January, 1981, the plaintiff opened and/or granted the Defendant loans, overdrafts, accommodations and/or Banking facilities at the Defendants request for the purpose of promoting Defendants business and in this process, the Defendants became indebted to the Plaintiffs in the sum of N1,542,294.32 (One Million, Five Hundred and Forty two thousand, two hundred and Ninety four Naira, Thirty two kobo) includes interest and other bank charges calculated up to and inclusive of 20th January, 1981.

 

10.       The Defendants drew various sums of money on its Accounts (now lumped together) with the plaintiffs at Warri (Enerhen Junction) and became indebted to the Plaintiffs in the total sum of N1,542,294.32 (One Million, Five Hundred and Forty Two thousand, Two hundred and Ninety Four Naira Thirty two Kobo) as on 20th January, 1981. The sum represent various Banking facilities (now lumped together with interests and other bank charges thereof) The plaintiffs shall at the trial found on the various cheques issued by the Defendant in exercise of the banking facilities granted to it.

 

11.       The defendant have refused, failed an/or neglected to pay the debts despite repeated demands. At the trial the plaintiffs shall rely on the letter of demand Re: G/299 of 17/4/78.

 

12.       The defendants were, in keeping with Banking practice, sent periodic Statements of Account to the address and/or addresses provided by the Defendants, reflecting the state of the Defendants indebtedness at every stage by the plaintiffs. Although the Defendants were satisfied with the correctness of these Accounts, the Defendant have failed, refused and/or neglected to make good the account despite demands. The plaintiffs shall at the trial found on these Statements of Account. If the Defendants fails to produce these Statements of Account, plaintiff shall rely on the certified true copies of the Defendant Statement of Account prepared by the Plaintiffs. The plaintiffs shall also rely on the various cheques and other Debit vouchers with which money was withdrawn on the various account, (now lumped together).

 

13.       The plaintiffs shall contend that it was an express and/or implied term of the overdraft accommodation granted to the Defendants that in keeping with banking practice, shall from time to time effect appreciable repayment of its indebtedness to the plaintiffs, and in any case, shall on damand retire its indebtedness too to the Plaintiff. The plaintiffs shall further contend that as at 20th January, 1981, the Defendant indebtedness to the Plaintiffs stood at N1,542,294.32 (One Million, Five Hundred and Forty two Thousand, Two Hundred and Ninety Four Naira. Thirty two Kobo) and that the said sum of money has become due and payable by the Defendants to the plaintiffs, but the Defendants have failed, refused and/or neglected to do so despite repeated demands made on it by the Plaintiffs.

 

14.       The plaintiff shall contend that no formal agreement was reached and/or concluded with the Defendants as to the transfer to the Debts to another Company. Any inconclusive arrangements were after the writ of summons had been filed, and were all in the process of helping the defendants to reactivate its dying business.

 

15.       The plaintiff shall contend at the trial that Mr. Yoma Esiso has never been an agent or Nominee of the Plaintiffs, but an authorised representative of the Defendants. At the trial, the plaintiffs shall rely on various correspondence and documents particularly.

 

(a)       The power of Attorney given to Mr. Yoma Esiso by Chief J.O. Oguma acting for himself and on behalf of the Defendants.

 

(b)       The Memorandum and Articles of Association of Songhai Haulage Limited which is registered as No.RE 30229 on 26/9/79.

 

The relevant portions of the amended statement of Defence are as follows:

 

“4.       The defendant denies paragraphs 5,6,7,8 and 9 of the Statement of Claim and puts the plaintiff to the strictest proof thereof.

 

5.         The defendant avers that during several negotiations held between the plaintiff and the defendant in relation to the business transaction between them, the parties reached an agreement whereby the defendant was to establish a working relationship with the plaintiff’s nominee, a Mr. Yoma Esiso, who was also to manage the defendant’s transport business.

 

6.         It was also agreed that the working relationship was to develop into the formation of a new company to which certain asses and the liabilities of the defendant currently holding with plaintiff would be transferred.

 

7.         In pursuance of the said agreement the defendant transferred 26 tractor/Trailers and 5 operational Vehicles to the plaintiff’s nominee, the aforesaid Mr. Yoma Esiso and continued the working Relationship with the tacit approval of the plaintiff.

 

8.         The name to be given to the said new company was chosen by the same plaintiff’s nominee as Songhai Haulage Ltd. and the plaintiff opened an account in the name of the said company before its corporation which was on 26th September, 1979.

 

9.         During the negotiations referred to above, the plaintiff promised to discontinue the present suit against the defendant since the defendant had carried out its obligations under the Aforesaid agreement.

 

10.       The defendant avers that the plaintiff is estopped from continuing the suit herein.

 

11.       The defendant will at the trial rely on various correspondent and documents particularly.

 

(i)         Letter Ref. OAC/C/36/201 dated 1st June, 1978 and addressed to the plaintiff by the defendant.

 

(ii)        Letter Ref. MAN/EXT/535/78 dated 6th June, 1978 and addressed by the plaintiff to the defendant.

 

(iii)       Letter Ref. OAC/c/36/204 dated 10th June, 1978 addressed by the  defendant to the Plaintiff.

 

(iv)      Minutes of meeting held on 8th June 1978 between representatives of the parties hereto

 

(v)       The statement of account of Songhai Haulage co.

 

(vi)      Letter Ref. RB/NT/22/02/78 Dated 25th August, 1978 addressed to the defendant by the plaintiff’s Solicitors.

 

(vii)      Letter dated 16th March, 1979 signed by Mr. Y Esiso addressed to the plaintiff.”

 

It is correct as the lower Court observed that the defendant did not plead at all to paragraphs 10 to 12 of the Plaintiff’s Statement of Claim, in this regard Counsel of the Defendant Company submitted to us that paragraphs 10, 11, 12 and 13 of the amended Statement of Claim are explanations or implications of paragraph 7 of the amended statement of Claim. And the Defendant having denied paragraph 7 of the amended Statement of Claim has also impliedly denied paragraphs 10, 11 12 and 13 of the amended Statement of Claim. I form the view that these paragraphs tend to plead evidence which the plaintiff will rely on in proof of the allegation in paragraph 7of their statement of Claim, Since pleadings need not contain evidence. I do not think one can blame a defendant if he does not plead to the evidence contained in the Statement of Claim. The crux of the matter, therefore, on the aspect of the pleadings in this appeal is whether the denial simpliciter by the defendant of paragraph 7 of the Statement of Claim insufficient to satisfy the requirements of the rules of pleadings so that one can say that an issue as to the amount claimed by the plaintiff against the defendant has been raised.

 

The trial Court held that the denial of the amount claimed simpliciter by the defendant in its Statement of Defence is sufficient in this regard the Court below held that it was not . The relevant rules of Court are Order 13 Rules 9-10 of the High Court (Civil procedure) Rules of Bendel state.

 

They read as follows:-

 

"9.        The defendant’s pleading or defence shall deny all such material allegations in the petition as the defendant intends to deny at the hearing every allegation of fact, if not denied specifically or by necessary implications, or stated to be not admitted shall be taken as established at the hearing.

 

10.       It shall not be sufficient to deny generally the facts alleged by the statement of claim, but the defendant must deaf specifically therewith, either admitting or denying the truth of each allegation of fact seriatim, as the truth or falsehood of each is within knowledge, or (as the case may be) stating that he does not know whether such allegation or allegations is or are true or otherwise.

 

11.       When a party denies an allegation of fact he must not do so evasively, but answer the point of substance. And when a matter of fact is alleged with divers circumstances it shall not be sufficient to deny it is alleged along with those circumstances, but a fair and substantial answer must be given.”

 

These Rules are in pari materia with the Rules of Court (England) 1875 Order XIX Rules 17 20 and 22 respectively.

 

It has been said with reference to the English Rules of Court that they effected fundamental change in the rules of pleadings which prevailed before the Judicature Act 1873 by doing away with the old pleas of never indebted or not guilty and other general issues and introducing the requirement that each allegation of fact should be dealt with specifically (per Thesiger, L J in Bryd v Nunn (1877) 7 Ch D 284, 287.

 

In Thom v Holdsworth (1876) 3 Ch D 637 whilst considering the rules of Court 1875 (Eng.) Order XIX rr 17, 20 and 22 in relation to what might amount to evasive denial Jessel, M R said as follows at page 640;

 

"Then in order that there shall be no mistake as to the meaning of the word specifically in the 20th rule, the 22nd rule says this. “ When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum, or any part thereof, or else set out how much he received. And so, when a matter of fact is alleged with divers circumstances, it shall not be sufficient to deny it as alleged along with those circumstances, but a fair and substantial answer must be given."

 

It is true as Counsel for the Defendant pointed out in the appellant’s brief of argument the case of Lewis & Peat (N R 1) Ltd. v Akhimien (1976) 7 S C 157 has to do with the pleadings of a defendant in which he said he could not deny or admit a particular allegation in the pleading of the plaintiff and that case says such a plea is evasive and cannot raise any issue as to the said allegation in the plaintiff’s pleading. This is not the case here as counsel for the Defendant Company contended

 

However, applying the principles which I have stated above to paragraph 4 of the Defendant’s pleading I come to the conclusion that the paragraph a mere denial for the amount claimed from it by the plaintiff and no more and is wholly inadmissible So, having regard to Order 13 Rules 9-11 of the High Court (Civil procedure) Rules of Bendel State paragraph 7 of the plaintiff’s Statement of Claim can be taken as established at the hearing since the allegation therein have not been denied specifically. So I agree with the Court below that the state of pleadings in this case supports judgement in favour of the plaintiff if it had moved for judgment. See in this regard too the case of Tildesley v Harper (1877) 7 Ch D 400. In that case in an action against a lessee to set aside a lease granted under a power, the statement of claim stated that the donee of the power had received from the lessee a certain sum of bribe, and stated the circumstances. The statement of defence denied that that sum had been given and denied each circumstances, but contained no general denial of a bribe having been under Rules of Court 1875. Order XIC Rule 212 and must under Order XIX rule 17, be taken to have been admitted and judgment was given for the plaintiffs. As I have said earlier on in this judgment Order XIII Rules 9 - 10 and 11 of the High Court (Civil Procedure) Rules of Bendel state are in pari materia with the Rules of Court (1‘875) U K Order XIX Rules 11, 20 and 22 respectively.

 

It is true that the plaintiff Bank did not move for judgment on the Defendant Company’s admission in the Statement of defence. But it was even held in Tilesley v Harper (Supra) that the Plaintiffs in the case had not waived their right to judgment on the admission by not having moved for judgment under Order XI r 11 of the English Rules.

 

What I have just said is enough to show that on the state of the pleadings the plaintiff Bank was entitled to judgment on its claim against the Defendant. However, I will also consider the other ground upon which the Court of Appeal the lower court, found for the plaintiff bank, that is to say, that regardless of exh G on the evidence before the lower Court, the plaintiff Bank was entitled to judgment.

 

It is the submission of Counsel for the Defendant Company, Mr. Bayo Kehinde SAN that once Exh G has been rejected the case of the Plaintiff bank must inevitably fall, it behoves me therefore to examine the probative value of exh. G. Exh G is pleaded in the plaintiff’s Bank’s statement of claim as Statement of Accounts of the Defendant Company with the plaintiff bank sent to the latter by the Bank from time to time. Counsel for the Defendant Company took the view that the Statement of account relate to entries in the Plaintiff’s books of Accounts. In fact exh G was treated as such in those proceedings and that was why it was rejected in evidence. I too must look at it in that light having regard to what I have earlier on in this judgment said that the appeal must be decided on the basis rightly or wrongly that Exh G has been expunged from the proceedings in this case for the reasons given by the trial Court and endorsed by the Court of Appeal, the lower Court.

 

I must examine section 37 of the evidence act, which provides for the admissibility of entries in books of accounts as follows:

 

"Entries in books accounts regularly kept in the course of business, are relevant whenever they refer to a matter into which the court has to inquire, but such statement shall not alone be sufficient evidence to change any person with liability."

 

So Exh G copies of entries the plaintiffs books of Account is relevant to the matter into which the trial Court was inquiring it is not conclusive evidence on the matter into which the Court was inquiring nor is it the only evidence relevant to the matter into which the Court was inquiring. Nor could it be said in the face of Section 37 of the Evidence Act that exh F is a sine que non for the success of the Plaintiff Bank in the matter can by other admissible evidence besides exh G prove its claim against the Defendant Company.

 

There was before the Court the oral evidence of P W 1 Adebayo Ajikola Owolabi, the branch manager of the plaintiff bank to the effect that the Defendant Company was indebted to the Bank to the tune of the sum claimed in the writ of summons against it. The cheque which the plaintiff Bank said the Defendant Company drew on the Bank against the overdraft facilities granted to the Defendant Company and which the bank honoured were put in evidence. The application of the Defendant Company to the Plaintiff bank for the said loan facilities was also put in evidence.

 

The Defendant Company offered no evidence in its own behalf. So the oral evidence of P W 1 to the effect that the Defendant Company was indebted to the bank in the sum claimed was not contradicted. As to the probative value of the oral evidence of P W 1 alone I will refer to the following passage from the judgment of this Court in Nwabuok v Ottih (1961) 1 All NLR (part 3) 487 at 490 where Ademola, C.J.F delivering the judgment of the Court said as follows:-

 

"It is clear from his judgment that the learned trial Judge gave no consideration what ever to the appellant’s evidence before him, his evidence was not at any time rebutted by the defendant who did not go in the witness box to give evidence. The evidence of the appellant therefore stands uncontradicted. His evidence giving the terms of the transaction between him and the Respondent was in terms of his writ. In the absence of an evidence of rebuttal the appellant was entitled to judgment and I am of the view that the learned Judge’s duty was to have entered judgment in his favour at the close of the respondent’s case."

 

In my judgement therefore on the evidence before the Court, the Plaintiff Bank was entitled to judgement on its claim against the Defendant Company.

 

In the result, this appeal fails and it is hereby dismissed by me with costs assessed at N500.00 to the Respondent.

 

 

Judgement delivered by

Kayode Eso, J.S.C

 

I was privileged to have read in draft the Judgment which has now been delivered by my learned brother Agbaje, JSC.

 

There is sufficient oral evidence n the case to establish the Appellant's liability.  Further, that oral evidence remained uncontradicted.

 

I will also dismiss the appeal and I endorse all the orders contained in the judgment of my learned brother Agbaje JSC.

 

 

 

Judgement delivered by

Augustine Nnamani, J.S.C

 

I had a preview the judgment just delivered my learned brother Agbaje, J.S.C. I agree entirely with his reasoning and conclusions.

 

In paragraphs 7 - 10 of their amended statement of claim, the plaintiff/respondent pleaded the indebtedness of the appellant and other issues relevant to the contention between the parties.  The appellant in its statement of defence did not reply to these averments in any positive sense.  To further add to the problems of the appellant, it did not give evidence at the trial in rebuttal of the evidence of indebtedness given by the respondent.  Chief Bayo Kehinde, S.A.N. has contended in this Court that once Exhibit G (the ledger cards) was expunged from the records, any other evidence given by the respondent had to comply with section 96, particularly sub sections (l)(h) and (2)(e), of the Evidence Act. It was his contention that the evidence led by the respondent did not entitle it to judgment.  I too would not wish to say anything further on Exhibit G since there is no Cross-appeal on it before this Court. It is my view too that a Respondent's Notice was not the proper way to have attached the decisions of the learned trial judge and the Court of Appeal on Exhibit G.  As regards section 96(1) of the Evidence Act, it provides that:

 

"Secondary evidence may be given of the existence, condition or contents of a document in the following cases:

 

"(l)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 is as follows:

 

 In subsection(e) thereof and in respect of (l)(h) above, it is provided that

 

"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 ........"

 

It is my view that these provisions relate more to Exhibit G - entries in the ledger cards which was in any case expunged from the records.  I do not see that they can apply so to exclude such documents as the cheques issued by the appellant and honoured by the respondent tendered in the proceedings as Exhibit C.  I agree with Mr.Sogbesan,S.A.N. for the respondent, that one has to be circumspect in interpreting section 96 in the light of modern day banking procedures and gadgets such as computers being increasingly used.  Section 37 of the Evidence Act would in my view relate more to Exhibit G.  I think that oral evidence was clearly admissible to establish the appellant's indebtedness. When it was given, it remained uncontradicted.  When one puts it together with the appellants' drawn cheques, signature slips etc the respondent was entitled to judgment.

 

I too would, and do dismiss the appeal. I endorse all the orders made by my learned brother, Agbaje, J.S.C.

 

 

Judgement delivered by

Muhammadu Lawal Uwais, J.S.C

 

I have had the opportunity of reading in draft the judgment read by my learned brother Agbaje, J.S.C and I agree with the reasons and conclusion reached therein. I do not wish to add anything.

 

The appeal is hereby dismissed with N500.00 costs to the respondent.

 

 

Judgement delivered by

Philip Nnaemeka-Agu, J.S.C

 

I have had a preview of the judgment of my brother, Agbaje, J.S.C., in this appeal.  I agree with him that the appeal has no merit and ought to be dismissed.  His comprehensive Judgment has dealt adequately with all the issues that arise for determination in the appeal.

 

I only wish to underscore one point.  The point that needs to be emphasized is the difference in practice and substance between a cross-appeal and a respondent's notice.  A cross-appeal is just like any other appeal and is governed by the same rules as any other appeal(i.e. Order 8 rule 2 of the Supreme Court Rules, 1985); but a respondent's notice is based on a different rule (Order 8 rule 3 ibid). A cross-appeal is therefore, like any other appeal, commenced by a notice of appeal.  Where a respondent wants a reversal of a decision, a part thereof, or any conclusion of fact in the decision, his proper procedure is by way of a cross-appeal.  A cross-appeal does not strictly depend upon an appeal having been filed: any person who has had a judgment in his favour but seeks to reverse the judgment or part of it or any important finding therein can file a cross-appeal without first waiting to be served with a notice of appeal by the unsuccessful party. In fact a cross appellant is subject to the same statutory limitation as to time within which to appeal imposed by section 31 of the Supreme Court Act, 1960, unless of course, time has been extended. See Order 8 rule 2 of the Supreme Court Rules, 1985.

 

A respondent's notice, on the other hand, depends upon an appeal being filed by the unsuccessful party first.  It depends on a notice of appeal being served on the respondent first; then, unless time is extended, he must file and serve his respondent's notice within 15 days in the case of an appeal against an interlocutory order or one month in any other case.  The procedure of respondent's notice is resorted to when the respondent, not wanting to appeal against the decision, desires to contend in the appeal that the decision of the court should be varied or that the decision should be affirmed on grounds other than those relied upon by the court against whose decision the appellant has appealed, it is limited to points which have arisen in the appeal.  See on these: Order 8 rule 3 of the Supreme Court Rules,  1985 See: Lagos City Council v. Ajayi(1970) 1 All N.L.R. 291, at p.294 - 297; Alhaji Sunmonu & Ors vs. Gbadamosi Ashrota (1975)1 N.M.L.R. 16.

 

In the instant case in which the respondent wants a reversal of the decision of Exh. G in the lower court, his correct procedure would have been by way of a cross-appeal and not a respondent s notice, see: Oba Adeyinka Oyekan vs. BP. Nigeria Ltd (1972)1 All NLR, 45, at pp.47 -48.  I therefore agree that we cannot consider the submissions by the respondent based on Exh G.  However, having disregarded Exh. G, I am satisfied that other  evidence called at the trial is sufficient to sustain the judgment. For as the appellants, the defendants, offered no evidence, the evidence before the court goes one way.  There is nothing to put on the other side of the balance as against the evidence given for the respondents (Plaintiff), the onus of proof in such a case is discharged on a minimal of proof: Nwabuoku vs Ottih (1961) All N.L.R. 487, at p. 490.

 

I therefore also dismiss the appeal as being without merit.  I also make the same order as have been made in the lead judgment.

 

 

Counsel

 

Chief Bayo Kehinde, SAN

with him

Paul Agbo

......

For the Appellant

 

 

 

A.O. Sogbesan, SAN

with him

Akin Akinsote

......

For the Respondent