CHIEF S. N. MUOMAH v. ENTERPRISE BANK LIMITED (2015)

CHIEF S. N. MUOMAH v. ENTERPRISE BANK LIMITED

(2015)LCN/7922(CA)

In The Court of Appeal of Nigeria

On Monday, the 29th day of June, 2015

CA/L/338/2012

RATIO

PRACTICE AND PROCEDURE: PLEADINGS: THE EFFECT OF THE LACK OF EVIDENCE IN SUPPORT OF PLEADINGS AND THE PRINCIPLE THAT A PLAINTIFF NEED NOT PROCEED TO PROVE AN ADMITTED FACT

What lack of evidence in support of pleadings mean is that the pleadings of the Respondent stand abandoned, see the case of U.B.N PLC V AYODARE & SONS (NIG) LTD (2007) 13 NWLR (Pt 1052) 567 where the apex court held thus;
“It is settled law that where a party to an action fails to testify in support of facts in his pleadings, those facts are deemed abandoned.”
See also YUSUF V OYETUNDE (1998) 9 – 10 SC 123; OMOBORIOWO V AJASIN (1984) 1 SCNLR 108 and FAYEMI V ONI (2009) 7 NWLR (Pt 1140) 223 at 255. The pleadings of the appellant were not traversed therefore, the legal effect is that the burden of proof on the claimant is lightened because of the general rule that pleadings not traversed are deemed admitted or that the burden of proof is now minimal. See CHIEF RASAKI KOLAWOLE SODIPO & ORS V MR. AYINKE SHADIKO OGIDAN & ORS (2007) LPELR – 3962 (CA) which in following the case of OMOSHO V DADA (1984) 7 SC 149 held thus:
“A plaintiff need not proceed to prove an admitted fact. And a fact is deemed to be admitted if it is neither specifically denied nor denied by implication, having regard to other facts averred in the pleadings. A plaintiffs’ averments of facts must be met by the defendant frontally and categorically. The rule of pleadings do not allow a defendant to be hedgy or evasive in his answers to the facts averred by the plaintiff. Once he refuses to met the facts directly – either by admitting or denying them, except, of course, where he is not in a position to admit or deny by reason of the matter, for example, being peculiarity within the knowledge of the plaintiff – he is taken to have admitted them.
Deducing from the foregoing authority, it is expected of the appellants to have properly traversed the averments on the respondent’s claim by a denial or non admission either expressly or by necessary implication. Refusal to admit a particular allegation in a statement of claim must be stated specifically, the absence which amounted to an admission.”
On minimal proof, this court in the case of SKYPOWER EXPRESS AIRWAYS LTD V AJUMA OLIMA & ANOR (2005) LPELR – 7548 (CA) said as follows:
“In particular, and this is well settled, where a defendant offers no evidence whatsoever in defence the evidence before the trial court obviously goes one way, with no other set of facts or evidence on the opposite side weighing against it. There is nothing to put on the other side of the “imaginary sale” of justice or balance and, in that case, the onus of proof is naturally discharged on minimal proof.”
See also NWABUOKU V OTTIH (1961) 1 ALL NWLR 487 at 490; OGUMA ASSOCIATED CO (NIG) V I.B.W.A (1988) 1 NWLR (Pt 73) 658 at 682 and BALOGUN v U.S.A LTD (1992) 6 NWLR (Pt.247) 336 at 354. per. YARGATA BYENCHIT NIMPAR, J.C.A.

BANKING LAW: BANKER AND CUSTOMER RELATIONSHIP; WHETHER THE RELATIONSHIP BETWEEN A BANKER AND HIS CUSTOMER IS THAT OF DEBTOR AND CREDITOR

EVIDENCE: UNCONTROVERTED EVIDENCE; THE EFFECT OF AN UNCONTROVERTED EVIDENCE
The legal position of uncontroverted evidence is settled, see OGUNYADE V OSHUNKEYE (2007) 15 NWLR (Pt 1057) 218 where the Supreme Court held thus:
“The law in my view is settled that where evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the proceedings to act on the unchallenged evidence before it. ODULAJA V HADDAD (1973) 11 SC 357; NIGERIAN MARITIME SERVICES LTD. V. ALHAJI BELLO AFOLABI (1978) 2 SC 79. Unchallenged sand uncontradicted evidence ought to be accepted by the court as establishing the facts therein contained.”
See also NZERIBE V DANE ENG. CO. LTD. (1994) 8 NWLR 124; EBEINWE V THE STATE (2011) 7 NWLR 402 and OKIKE V L.P.D.C. (2005) 15 NWLR (Pt.949) 471. per. YARGATA BYENCHIT NIMPAR, J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

CHIEF S. N. MUOMAH (Trading under the name and style of Metro – Harman Enterprise) Appellant(s)

AND

ENTERPRISE BANK LIMITED Respondent(s)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Lagos High Court of Justice delivered by HON. JUSTICE R.I.B. ADENIYI on the 13th February, 2012. The appellant aggrieved with the judgment filed a Notice of Appeal setting out 4 grounds of appeal.

The brief facts of the claim giving rise to this appeal are that the appellant was the claimant at the lower court wherein it claimed as per his statement of claim as follows:

(i) The sum of N1,625,000.00 (One Million, Six Hundred and Twenty Five Thousand Naira) being the value of the bank cheque purchased by the claimant from the Defendant which the claimant never cashed.

(ii) The sum of N30,527.65 (Thirty Thousand, Five Hundred and Twenty Seven Naira, Sixty Five Kobo) being credit balance in the claimant account No. 202411 at the Defendant Bank Tin Can Island Branch, Apapa Lagos as at 31st December, 1995, which the defendant have failed/refused to allow the claimant to withdraw from.

(ii) Interest on the said sum at the rate of 25% per annum from 20th June, 1994 until the debt is fully liquidated.

The appellant claimed that he purchased a bankers cheque in the sum of N1,625,000.00 (One Million, Six Hundred and Twenty Five Thousand Naira) from the former African Continental Bank on the 20th June, 1994 which got lost and same was reported to defendant’s Festac Town Branch, that he was advised to wait for the 6months mandatory period and that the bank would block the cheque and place the value on a suspense account. Appellant alleged that after the 6months, he again requested the bank to credit his account with the value of the cheque but as he was waiting for it the bank closed shop only to reopen in 2002. The appellant wrote formerly making demands for the crediting of his account with the value of the cheque. That the Respondent invited the appellant for reconciliation and verification and was issued a form with a credit balance of N30,527.65 (Thirty Thousand, Five Hundred and Twenty Seven Naira, Sixty Five Kobo) as his balance. That he made a demand for the value of the bankers cheque, that was when the Respondent claimed that the cheque had been given value to a 3rd party but declined to give the name of the clearing bank and payee. He later reported the issue to the Police. That the Respondent admitted before the Police that the cheque had not been given value and the Respondent requested for some documents such as Police extract to enable them pay. The documents were given but still the Respondent refused to make good the value of the cheque thus the claim. The claimant called 2 witnesses while the Respondent did not call any witness, the trial court dismissed the claim thus this appeal.

The appellant filed his brief on 18/6/12 wherein 2 issues for determination were distilled.

The Respondent filed his brief on 11/4/13 and he adopted the two issues formulated by the appellant.

The issues for determination states thus:

(i) Whether the learned trial Judge was right in dismissing the second claim of the claimant which is the N30,527.65 (Thirty Thousand, Five Hundred and Twenty Seven Naira, Sixty Five Kobo) being the credit balance in his account with the respondent bank which was admitted by the Respondent in paragraphs 15 of the Amended Statement of defence.

(ii) Whether the oral report made by the claimant and the 2nd claimant witness of the loss of the cheque to the Respondent is a valid report for the Respondent to re credit the account of the claimant with the value of the missing cheque.

Proffering arguments on the first issue, the appellant submitted that the claim for N30,527.65 (Thirty Thousand, Five Hundred and Twenty Seven Naira, Sixty Five Kobo) being a credit to the benefit of the appellant was duly pleaded and supported by Exhibit C12, a verification acknowledgement by the Respondent. That the Respondent is bound to pay on demand, he cited the case of YUSUF V COOPERATIVE BANK LTD (1994) 7 NWLR (Pt 359) 676 on the relationship between banker and customer to submit that the appellant is entitled to any amount standing in his account on demand especially where the Respondent admitted in its paragraph 15 of the Amended Statement of Defence. He urged the court to find for the appellant.

ISSUE TWO:

Under issue two, the appellant submitted that the claim was duly pleaded with evidence of events presented to the court which was uncontroverted and therefore it should have been taken as proved, relied on NSIRIM V OMUNA CONSTRUCTION CO (NIG) CO. LTD (1994) 1 NWLR (Pt 318) 1 at 6 on uncontradicted evidence. He challenged the lower courts finding that loss of the cheque was not formerly reported on time and the late report was fatal to the claimant and the court relied on Section 69 (1) of the Bills of Exchange Act. Appellant argued that the Section did not provide for time limit for reporting a lost cheque and that it provides for customers seeking a replacement of a bill of exchange not those reporting loss.

Appellant revisited his letter of 22 December, 1997 to the bank wherein he requested for re-crediting of his account not replacement and that it was Ms. Pepple who asked that value time should be allowed to lapse before taking any step.

Arguing further, the appellant contended that failure to report the loss formerly on time only amounts to an irregularity and cited ASIME (NIG) LTD & ANOR V LOWER BENUE BASIN DEVELOPMENT AUTHORITY & 2 ORS (2002) 8 NWLR (Pt 769) 349 at 357.

Furthermore, the appellant argued that the issue of non presentation of the cheque is supported by Exhibit 9 and asked if the court would allow the Respondent convert the Appellants funds, he relied on UNION BANK OF NIGERIA PLC V UMEOBUAGU (2004) 13 NWLR (Pt 890) 352. He finally urged the court to find for the appellant and allow the appeal.

The Respondent on his part reviewed the facts supporting the claim and argued the two issues together. He referred to the cases of YUSUF V COOPERATIVE BANK LTD (1994) 7 NWLR (Pt 359) and UBN V UMEOBUAGU (2004) 13 NWLR (Pt 890) 352 to contend that they are not applicable to the facts of this appeal. It relied on Section 69 (1) of the Bills of Exchange Act Cap 35 Laws of the Federation of Nigeria and Section 40, and 45 of the same Act.

On the oral report of the loss of the cheque, the appellant submitted that it has no substance and relied on NSIRIM V OMUNA CONSTRUCTION CO. (NIG) CO. LTD (1994) 1 NWLR (Pt 318) to contend that the evidence of the appellant though uncontroverted, it is not worth believing as it is concocted.

Respondent highlighted Exhibit C14 made on 3/3/1998, Police report – Exhibit C19 made on 28/1/2004 which shows that the evidence is watery because the claimant could not submit Exhibit C19 in 1997 when he was asked to present it to the Respondent or 2001 when Respondent reopened its business. Respondent argued that the exhibits bear dates preceding 1998 and 2004 but were alleged to have been requested for in 1997 or before 2001 and that it goes to show that the claim of the appellant is fishy.

Respondent argued that the appellant could not explain the delay in making a demand and that the Respondent had paid the value of the cheque. That the delay is caught by the Bill of Exchange Act and documentary evidence cannot be altered by oral evidence as it relied on AGBAKOBA V INEC (2009) 24 WRN and KOIKI V. MAGNUSSON (1999) 8 NWLR (Pt 615) 492.

Respondent agreed with the trial Judge’s reliance on formal report dated 22nd December, 1997, Police Report of 28th January, 2004 and affidavit of loss of 3rd March, 1998 which it contended cannot be varied by oral evidence and the evidence of CW2 is unreliable. It also challenged the failure to call the said Ms. Pepple to testify for the appellant.

It submitted further, that the appellant also slept over his right and therefore cannot be protected by law. Furthermore, that a party cannot benefit from his fault citing GREEN V GREEN (2001) 45 WRN 1- 180.

On the issue of technicality not to be used against the appellant, Respondent argued that the appellant failed to comply with the law and that the law is an ass which will keep galloping along so long as litigants refuse to follow simple rules clearly laid down by statute and relied on AFRICAN PETROLEUM V OWODUNNI (1991) 8 NWLR 391 – 522 (unclear citation). It urged the court to find for the Respondent.

On issue one, the Respondent submitted that the burden is on the appellant as required by Section 133 of the Evidence Act, 2011. The Respondent argued that the claim for balance to the credit of the appellant in his account though admitted by the Respondent in the pleadings was rightly dismissed because he did not show evidence of demand and refusal to pay by the Respondent. Furthermore, that judgment could not have been given on the admitted pleadings, it relied on APATIRE V L.I.L.G.C. (2007) 39 WRN 155 on the duty of court to evaluate evidence before it to see if it is cogent enough to support the claim.

On the account of the appellant with the Respondent, it submitted that being a current account the relationship is guided or operated by means of a cheque book, citing JOACHINSON V SWISS BANK CORPORATION (1921) 3 KB 110 at 127; NATIONAL BANK OF NIGERIA (1978) 3 S.C. 155.

Arguing further, the Respondent submitted that until the appellant issues a cheque for the balance, the Respondent is not under a duty to pay anything to him. It referred to Section 10 and 47 of the Bills of Exchange Act.

The Respondent supported the dismissal of the suit by the lower court submitting that the evidence of the appellant could not sustain the claim and the claim offends the Bills of Exchange Act. That the duty of the court is to give effect to the clear statutory provisions. It finally urged the court to dismiss the appeal.

RESOLUTION:

The issues formulated by the appellant shall be adopted for determination in this appeal and they shall be considered together.

The claim of the appellant was highlighted above and the record of appeal reveals that the Respondent did not call evidence in defence of the claim of the Appellant. It is settled that it does not mean that the claim should succeed automatically as the claimant must still establish the claim by credible evidence. What lack of evidence in support of pleadings mean is that the pleadings of the Respondent stand abandoned, see the case of U.B.N PLC V AYODARE & SONS (NIG) LTD (2007) 13 NWLR (Pt 1052) 567 where the apex court held thus;
“It is settled law that where a party to an action fails to testify in support of facts in his pleadings, those facts are deemed abandoned.”
See also YUSUF V OYETUNDE (1998) 9 – 10 SC 123; OMOBORIOWO V AJASIN (1984) 1 SCNLR 108 and FAYEMI V ONI (2009) 7 NWLR (Pt 1140) 223 at 255.

The pleadings of the appellant were not traversed therefore, the legal effect is that the burden of proof on the claimant is lightened because of the general rule that pleadings not traversed are deemed admitted or that the burden of proof is now minimal. See CHIEF RASAKI KOLAWOLE SODIPO & ORS V MR. AYINKE SHADIKO OGIDAN & ORS (2007) LPELR – 3962 (CA) which in following the case of OMOSHO V DADA (1984) 7 SC 149 held thus:
“A plaintiff need not proceed to prove an admitted fact. And a fact is deemed to be admitted if it is neither specifically denied nor denied by implication, having regard to other facts averred in the pleadings. A plaintiffs’ averments of facts must be met by the defendant frontally and categorically. The rule of pleadings do not allow a defendant to be hedgy or evasive in his answers to the facts averred by the plaintiff. Once he refuses to met the facts directly – either by admitting or denying them, except, of course, where he is not in a position to admit or deny by reason of the matter, for example, being peculiarity within the knowledge of the plaintiff – he is taken to have admitted them.
Deducing from the foregoing authority, it is expected of the appellants to have properly traversed the averments on the respondent’s claim by a denial or non admission either expressly or by necessary implication. Refusal to admit a particular allegation in a statement of claim must be stated specifically, the absence which amounted to an admission.”
On minimal proof, this court in the case of SKYPOWER EXPRESS AIRWAYS LTD V AJUMA OLIMA & ANOR (2005) LPELR – 7548 (CA) said as follows:
“In particular, and this is well settled, where a defendant offers no evidence whatsoever in defence the evidence before the trial court obviously goes one way, with no other set of facts or evidence on the opposite side weighing against it. There is nothing to put on the other side of the “imaginary sale” of justice or balance and, in that case, the onus of proof is naturally discharged on minimal proof.”
See also NWABUOKU V OTTIH (1961) 1 ALL NWLR 487 at 490; OGUMA ASSOCIATED CO (NIG) V I.B.W.A (1988) 1 NWLR (Pt 73) 658 at 682 and BALOGUN v U.S.A LTD (1992) 6 NWLR (Pt.247) 336 at 354.

On the issue of the missing bankers cheque, it must be made clear that the Respondent can only address the court on points of law since it’s pleadings (facts) before the lower court have been abandoned and so it has no evidence before the court.

The relationship between a banker and its customer was held to be as follows:
“For the proper appreciation of the evidence, I consider it necessary to state elementary principles of banking law and practice. Since the celebrated case of FOLEY V HILL (1848) 2 H.L. CAS. 28 the relationship in law between a banker and his customer has been that of debtor and creditor.”
When a customer whose account has money makes a demand on the bank, it must comply because it is a debtor and if the bank fails to pay the creditor is entitled to sue for recovery of the amount, which can be said to have arisen from the date of failure to effect payment, see YUSUF V COOPERATIVE BANK LTD (1994) 7 NWLR (Pt 359) 676. The appellant as part of the claim demanded for the balance standing to his credit. The argument of the Respondent is that the trial Judge who refused to grant the claim is right because there was no previous demand to which the Respondent failed to honour, thereby warranting the claim by action in court. It also argued that no withdrawal instrument was presented. It is clear that the Respondent admitted that the sum of N30,527.65 (Thirty Thousand, Five Hundred and Twenty Seven Naira, Sixty Five Kobo) was standing to the credit of the appellant with the Respondent. Having admitted, the duty on the appellant as observed earlier is minimal. Infact in this case, there was a clear admission and the added duty of tendering of instruments cannot arise.
The argument of the Respondent suggest that there is only one way that the money can be paid out which is across the counter. There is a difference between outright admission that can found a judgment and what default of pleadings can enure to the other side. The case of LEWIS & PEAT (NRI) LTD V AKHIMIEN (1976) 1 ALL NLR (Pt 1) 460 is in the same light as the case of CHIEF RASAKI KOLAWOLE SHODIPO V AYINKA SHADIKO OGIDAN (SUPRA), but there the Supreme Court said when a fact is admitted the claimant has no burden to proceed to prove same. I agree that in a normal relationship the customer issues a cheque upon which payment is made but that is not the only way a customer can be paid what is in his current account. Also the principle established in the case of JOACHINSON V SWISS BANK CORPORATION (1921) 3 KB 110 at 127 cannot hold true now with recent developments and advancement in technology.
The question is, the Respondent having admitted that the said amount is with it for the claimant how then could the lower court have found that the claim was not proved? I hold that the appellant proved that sum and judgment should have been entered for the appellant on that score, more so, it was not denied. The trial court erred in that regard. I find for the appellant.

The Respondent relied heavily on Section 69(1) of the Bills of Exchange Act Cap 35, Laws of the Federation which provides thus:

“Where a bill has been lost before its overdue, the person who was the holder of it may apply for the drawer to give him another bill of the same tenor, giving security to the drawer if required to indemnify him against all persons whatsoever in case the bill alleged to have been lost be found.”

Respondent also cited Section 40 of the Bills of Exchange Act which talked about reasonable time for the holder to negotiate or present the bill for acceptance.

For a start, the appellant told the lower court that the bankers cheque got missing and he reported to the Respondent’s Branch Manager at Festac Town, one Ms. Pepple asked him to wait for six months validity period to lapse before any action can be taken but that in the meantime the cheque would be blocked and the money placed in a suspense account. It is clear therefore that the appellant was not asking for another bill when he reported the loss. The issue of Section 69(1) applying to this case cannot arise. He reported a loss and an officer of the Respondent told him to wait which he did believing, indeed, that the cheque should have been blocked while the value placed in a suspense account. This evidence was not controverted at the hearing.
The legal position of uncontroverted evidence is settled, see OGUNYADE V OSHUNKEYE (2007) 15 NWLR (Pt 1057) 218 where the Supreme Court held thus:
“The law in my view is settled that where evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the proceedings to act on the unchallenged evidence before it. ODULAJA V HADDAD (1973) 11 SC 357; NIGERIAN MARITIME SERVICES LTD. V. ALHAJI BELLO AFOLABI (1978) 2 SC 79. Unchallenged sand uncontradicted evidence ought to be accepted by the court as establishing the facts therein contained.”
See also NZERIBE V DANE ENG. CO. LTD. (1994) 8 NWLR 124; EBEINWE V THE STATE (2011) 7 NWLR 402 and OKIKE V L.P.D.C. (2005) 15 NWLR (Pt.949) 471.

Assuming Section 69(1) quoted above is applicable, by virtue of the unchanged evidence on the timeous reporting of the loss of the cheque, the appellant acted within a reasonable time. Appellant did not request for a replacement.

It stands to reason therefore that the Bill of Exchange Act did not require a formal report of a missing cheque and since the Respondents did not challenge the evidence that a report was made to Ms. Pepple, it stands that a report was indeed made. The Respondents did not deny that Ms. Pepple was not its Branch Manager at Festac Town as at 20th June, 1994 when the report was made.

Furthermore, the evidence of the appellant detailed efforts made to have the value of the cheque credited to his account after the lapse of the 6 months as advised by Ms. Pepple and wrote a formal letter on 22nd December, 1997. This was also the basis on which the lower court found that the appellant made the report late. The argument that failure to make a formal report early defeated the claim is untenable. The cause of action can only fail where limitation period has caught up with it. The Bill of Exchange Act has no limitation period. The Respondent did not deny that the bank had challenges that transformed it from African Continental Bank to what it is today. The appellant’s testimony is quite clear on efforts made to get his account re-credited with the value of the bankers cheque until it became clear that he was not making any headway then he reported to the Police. The need for documentation arose from there not when the lost cheque was orally reported to Ms. Pepple. The 3 years delay was adequately explained, Respondent contended that it had paid the cheque before the formal report, there is no such evidence before the trial court since it did not call evidence and did not tender any such proof through the Appellant during cross examination. Address of counsel cannot take the place of evidence no matter how brilliant and alluring it may be, see ALIUCHA & ANOR V ELECHI (2012) LPELR – 7823 (SC) and ISHOLA V AJIBOYE (1998) 1 NWLR (Pt.532) 74.

The contention that documents tendered were concocted is a bare allegation which is unsubstantiated by the Respondent as required by law.

The most important question to my mind is whether the said cheque was presented and honoured by the Respondent, Exhibit 9 is to the effect that the cheque was not presented for payment. The Respondents by Exhibit C10 said the cheque was paid. The details of the beneficiary were not stated, date of such payment was not given. Request to the Respondent through Exhibit C17 and C16 for particulars were not responded to. The evidence of the alleged payment was not presented to the lower court either. I think there is a strong presumption that by the conduct of the Respondent, the value of the banker’s cheque was not paid out but converted by the Respondent. If the cheque was truly paid why would the Respondent not be able to give the required particulars? It is clear that there was no evidence that the cheque was paid out before the court and therefore the value is still with the Respondents. The excuse that the appellant failed to act as fast as expected is untenable. The letters and Police report produced to back the fact of the missing cheque were actually explained by the appellant in evidence and this was not controverted. It is obvious that the original bank(African Continental Bank)is not the present Respondent and the appellant told the lower court that the original Respondent had challenges that made it to close shop at one time and that branches were merged. He told the court that the Respondent kept on asking him to go and come, and to do one thing or the other until he got tired and took out a writ against the Respondent. The delay in reporting formally cannot be used as a cloak to encourage unjustified conversion of the appellant’s money which is fraudulent conversion. The Respondent did not controvert the evidence of the appellant nor did it put forward any evidence that can be placed on the other side of the scale in order to determine the claim on the preponderance of evidence. What has happened is that the little effort by the appellant has titled the scale of justice in his favour.

The answer as to who took value of the banker cheque rests with the Respondent and it failed, therefore the money is with it and no other. Naming the beneficiary would have given the appellant the opportunity to proceed against the said beneficiary but since none was named, it can be safely concluded that the money is still in the suspense account and must enure to the benefit of the appellant.

As the state of the pleadings were at trial, the case of the Appellant was stronger and supported by CW2 and the fact that CW2 could not recall the date they reported the loss to the Police cannot translate his evidence to a bundle of lies.

On the whole therefore the trial court went on a more technical expedition and technical justice is no longer the fashion. The era of technical justice is over, what is in vogue is substantial justice which was not done in this case. The appeal is meritorious and therefore succeeds. The judgment of HON. JUSTICE R.I.B. ADEBIYI delivered on 13th February, 2012 is hereby set aside and in its place, the court makes the following orders:

(1) The court awards to the Appellant the sum of N1,625,000 (One Million, Six Hundred and Twenty Five Thousand Naira) being the value of the banker’s cheque purchased by the appellant which was never cashed but kept by the Respondent.

(2) Post Judgment Interest on the said sum at the rate of 5% from the date of judgment until it is fully repaid.

(3) The sum of N30,527,65 (Thirty Thousand, Five Hundred and Twenty Seven Naira, Sixty Five Kobo) being the balance in the account of the appellant with the Respondent’s Festac Town Branch as at 20th day of June, 1997.

Cost of N50,000.00 (Fifty Thousand Naira) in favour of the Appellant and against the Respondent.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the Judgment just delivered by my Learned Brother Yargata Byenchit Nimpar JCA. I agree with her reasoning and conclusions.
I abide by all the consequential orders contained in the lead judgment and adopt them as mine.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR JCA. I agree with his reasoning and conclusions. He has dealt fully and comprehensively with all the issues raised in the appeal. I agree that the appeal has merit and should be allowed. I too hereby allow the appeal. I abide by the consequential orders in the lead judgment.

Appearances

Dr. BamahFor Appellant

AND

Jude EzeaFor Respondent