FIRST CITY MONUMENT BANK PLC v. CP-TECH CONSTRUCTION COMPANY LIMITED (2015)

FIRST CITY MONUMENT BANK PLC v. CP-TECH CONSTRUCTION COMPANY LIMITED

(2015)LCN/7956(CA)

In The Court of Appeal of Nigeria

On Monday, the 13th day of July, 2015

CA/EK/52/2014

RATIO

EVIDENCE: HANDWRITING; WHETHER THE COURT CAN FORM THEIR OWN OPINION AS TO HANDWRITING

In Queen v. Wilcox (1961) N.S.C.C. 274 @ 276 which the apex court even referred to in Ndoma-Egba, it was held by the Federal Supreme Court that: “It is not unusual for the Courts, in a clear case, to form their own opinion as to handwriting by comparing the handwriting alleged to be that of the appellant with a genuine specimen of his handwriting.” The apex court in Wilcox v. Queen after itself seeing and comparing the disputed handwriting concluded that: “In the present case, the dissimilarities between the signatures on the cheque and the genuine signatures of Nwobu are so apparent to the naked eye, and in our view, the course pursued by the learned Judge was not improper in the circumstances.” Not only has this case been followed severally by other decisions including Ndoma-Egba’s case (see p.105 of Ndoma-Egba’s case), the power of the judge to make the necessary comparison in clear cases like the instant one is amply supported by the provisions of Section 101(1) of the Evidence Act with its provision that: In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose. per. BOLOUKUROMO MOSES UGO, J.C.A.

BANKING LAW: DUTY OF CARE; WHETHER THE BANK OWED A DUTY OF CARE TO ITS CUSTOMERS

On the facts as adumbrated earlier, this reasoning and conclusion of the Lower Court cannot be faulted. There is no doubt that the appellant bank owed a duty of care and good faith to the respondent not only as its customer but even on the very transaction concerning its funds for the purchase of the ship in question and I am not by any means taken in by its counsel’s specious argument that ‘the appellant not being a party to Exhibit 17, it was not liable for any breach arising therefrom.’ Incidentally, the appellant’s counsel had quoted the position of the law correctly in para 4.0.2.1.2 of its brief of argument when he cited Agbonmagbe Bank Ltd v. C.F.A.O. (1966) ALL NLR 140; Abusomwan v. Mercantile Bank Ltd (1987) 3 NWLR (pt 60) 197 and Donoghue v. Stevenson (1932) A.C. 562 @ 580 to submit that a person must take reasonable care to avoid acts or omissions which he can reasonably foresee would likely injure persons who are so closely and directly affected by his acts or omissions that he ought to have them in contemplation. I further note that appellant’s counsel even reiterated his client’s duty as a bank when he again conceded much later in his argument under issue 5 that (and I quote): “That the relationship between a banker and its customer gives rise to a duty of care cannot be doubted. It is also settled that a bank may incur liability if it commits a breach of its duty of care resulting in injury to its customer.” per. BOLOUKUROMO MOSES UGO, J.C.A.

TRUST: CONSTRUCTIVE TRUST; IN WHAT SITUATION IS THE BANK SEEN AS A CONSTRUCTIVE TRUSTEE FOR IT’S CUSTOMER’S FUNDS

In fact in law a bank is seen as a constructive trustee for its customer’s funds, so much so that it may be held liable as such (constructive trustee) even in respect of a payment made in accordance with the customers mandate. This position is stated in Halsbury’ Laws of England, 4th edition, Vol. 3 (1), para 153 thus: Banks have been held as constructive trustees in circumstances wider than those of wrongfully obtaining by design or stipulation a benefit from a fund known to be affected by a trust; and constructive trust has been imposed upon a paying bank in circumstances where it has obtained no benefit for itself at all. A bank may be held liable even in respect of a payment it has made in accordance with its customer’s mandate. per. BOLOUKUROMO MOSES UGO, J.C.A.

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria

Between

FIRST CITY MONUMENT BANK PLC – Appellant(s)

AND

CP-TECH CONSTRUCTION CO. LIMITED – Respondent(s)

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Ekiti State, Ado-Ekiti Judicial Division, delivered on 4th March, 2014 by A.L. Ogunmoye J. It concerns a banking transaction between the respondent and his bank, the appellant, and monies deposited by the respondent with the appellant towards the purchase of a ship by the respondent from a Liberian based company. That transaction went awry and cost the respondent its said funds amounting to US$142,500.00 which the appellant transferred to the ship sellers as deposit when the respondent could not raise additional funds to acquire the ship because the appellant’s board eventually declined to approve the credit facility its Ado-Ekiti Branch Managers had in writing approved in principle and assured the respondent it would offer it. The $142,500.00 deposit became irretrievable because the agreement between the ship sellers and the respondent stipulated that any sum deposited by the respondent towards the acquisition of the ship shall become non-refundable if it eventually failed to buy it.

That is a summary of the facts of the case which are in any case not too disputed, except that the few ones disputed, which the Lower Court resolved in the way it appreciated them, form the hub of the arguments in this appeal.

Now, the fuller facts of case as presented by the claimant in its Further Amended Statement of Claim is that it operated a current account and a domiciliary account with the Ado-Ekiti branch of the defunct FinBank Plc, a commercial bank which presently goes by the name of the appellant having been subsequently acquired by and merged with the business and undertakings of the appellant. In the ordinary course of business, it approached the appellant for a loan in the total sum of N190 Million to enable it purchase a ship, the MV Katie. Both in its pleadings and the written deposition of its Managing Director/CEO, it identified the appellant’s Ado-Ekiti Branch Manager, Mr. Adubuola Olagoke and the Relationship Manager, Mr. Eladiya Thompson Temitope as the officers of the Appellant with whom its MD/CEO (CW4) had dealings, interaction and negotiations with in respect of the credit facility sought. At the prompting, advice and direction of these two persons, it averred, it prepared a feasibility report (Exhibit 14) and submitted the same along with a copy of the Memorandum of Agreement (Exhibit 17) signed between it and the ship’s owner and letter of application for loan (Exhibit 15) dated 27th December, 2007 to the appellant, which the appellant swiftly granted same day and issued it with a letter of offer (Exhibit 16) in principle.The Memorandum of Agreement (Exhibit 17) earlier referred to includes a clause which required the claimant to make a non-refundable deposit of US$142,500.00 (One Hundred and Forty Two Thousand, Five Hundred United States Dollars) in favour of the ship owners through one Gloriosa Co. within five (5) days from the date of signing the said agreement. The attention of the Appellant was drawn to this requirement and the time frame thereof, it said. Based on the assurance of the appellant’s aforementioned Ekiti Branch Manager and Relationship Managers that the appellant would release the loan fund contemporaneously to enable the transaction to be completed, it funded its domiciliary account with cash of US$142,500.00 (One Hundred and Forty Two Thousand, Five Hundred United State Dollars) for ease of facilitation of the foreign exchange transfer including, when appropriate, the aforesaid deposit. It claimed that since its Managing Director/CEO (CW4) resided in Ijebu-Ode, Ogun State -a considerable distance from Ado-Ekiti, Ekiti State- it was advised by the appellant’s same Ado-Ekiti Branch Manager and Relationship Manager to sign and leave with them, on trust, blank undated Transfer Instruction forms to facilitate a seamless and timely remittance of the price to the ship sellers in foreign exchange as soon as the Banker’s part was ready – and that is the main cause or point of dispute between the parties, at least in their arguments in court. The respondent claimed its MD/CEO (CW4) accepted the said advice in good faith and did sign, in blank and without dating, several Transfer instruction forms which he left with the Appellant’s Ado-Ekiti Branch Manager upon trust as advised. When time was running out without the transaction being consummated, it averred, its Managing Director (CW4) began to voice his displeasure at the slow pace the appellant was handling the transaction especially since time was of the essence to the contract of ship purchase. It was at this juncture, during one of his visits to the bank, it says, and it is not disputed, that the aforementioned Ado-Ekiti Branch Manager of appellant informed him that the Branch was encountering difficulties in obtaining the approval of its Board of Directors for the credit facility. The respondent averred its MD/CEO was to discover later that the appellant’s Ado-Ekiti Branch Manager had no power at all to originate, negotiate and/or undertake this type of credit transaction but the Branch and Relationship Managers concealed that fact from him. Ultimately, the appellant’s Board of Directors, it is again common ground, refused its approval for the credit transaction, in consequence of which the respondent was unable to purchase the ship. When respondent subsequently sought to utilize the US$142,500.00 in its domiciliary account, it said it was presented with a printout from the appellant purporting to show that between 11th and 29th January, 2008 the entire amount had been paid out by the appellant in fifteen installments to Gloriosa Co., the ship’s owner. It said the appellant claimed to have acted on the signed blank and undated Transfer Instruction forms earlier referred to.

Faced with that horrible turn of events, the respondent had to institute this suit where it claimed against the appellant:

a. Refund of the sum of US$142,500 (One hundred and forty-two Thousand, five hundred United States Dollars) to the claimant’s domiciliary account with the defendant.

b. Interest on the said sum of US$142,500 (One hundred and forty-two Thousand, five hundred United States Dollars) at the rate of 26% (twenty six per cent) per annum from 1st February, 2008 until the date of judgment in this suit.

c. Refund of the sum of N2,000,000 (Two Million Naira) being the amount expended by the claimant on professional fees for producing a feasibility proposal at the defendant’s behest.

d. The sum of US$50,000,000.00 (Fifty Million United States Dollars) or its local currency equivalent at the current exchange rate of N130 to US$1.00 (i.e N5,650,000,000.00) being a conservative projected loss of income from the operation of the ship for the remainder of its life span.

e. The sum of N200,000,000.00 (Two Hundred Million Naira) as general damages for breach of trust, negligence, breach of contract and detinue.

f. Interest on all judgment sums at the rate of 10% (ten per cent) per annum from the date of delivery of judgment in this until final liquidation of the judgment debt.

g. The cost of this action inclusive of the claimant’s solicitor’s fees of N20,000,000.00 (Twenty Million Naira).

The appellant while admitting that it did transfer the respondent’s funds to Gloriosa Co., denied generally in its Further Amended Statement of Defence that the respondent’s MD/CEO (CW4) signed in blank undated transfer instruction forms and left same with the appellant. It averred that he ‘supplied the information’ for the completion of the forms and argued at the trial (as they have also done before us) that the respondent’s MD/CEO (CW4) did actually complete by himself the said transfer forms.

That was the case before the Lower Court.

In preparation for the trial, respondent’s said MD/CEO, Otunba Abayomi Ajayi-Smith, and the appellant’s internal auditor, one Kosemani Temitayo, respectively filed witness statements for both parties and the case finally went to trial before Ogunmoye J. The respondent opened its case by first calling three persons on subpoena (including appellant’s Kosemani Temitayo as CW2) to tender documents after which its MD/CEO testified and closed its case as CW4. The appellant as defendant thereafter opened its defence with a witness on subpoena from the Ekiti State Ministry of Works and Transportation also to tender some documents (specifically Exhibits 24, 25, 26 and 27) after which its aforementioned internal auditor Kosemani Temitayo again testified as DW2 to close its case.

Parties thereafter filed and exchanged written addresses and adopted them in Court.

Thereafter, in a considered judgment spanning 32 pages, Ogunmoye J., after wading through the arguments of counsel on both sides and comparing the undisputed handwriting/signatures of the appellant’s Branch and Relationship Managers, Mr. Adubuola Olagoke and Mr. Eladiya Thompson Temitope and that of the respondent’s MD/CEO (CW4) on the said transfer forms in evidence, rejected the appellant’s contention that it was respondent’s MD/CEO that completed them and found as a fact that the said forms were completed fraudulently by the appellant’s Relationship Manager Eladiya Thompson Temitope; that the appellant did so wrongfully and was in breach of trust in so transferring respondent’s funds without first informing it more so when the five days period stipulated in the Memorandum of Agreement between the respondent and the ship seller for the deposit had lapsed before the transfer was made and the respondent knew that by the terms of that agreement, the funds once transferred were non-refundable; that the appellant by not calling its aforementioned Ado-Ekiti Branch Manager and Relationship Manager to refute the respondent’s assertion that they completed the transfer forms themselves meant it withheld evidence and so the presumption in Section 167(d) of the Evidence Act 2011 that they were not called because their evidence would have been against the appellant applied against it. His Lordship then proceeded to enter judgment in favour of the respondent and made the following orders:

“1. The defendant should refund the sum of US$142,500 (One hundred and forty-two Thousand, five hundred United States Dollars) to the claimant’s domiciliary account with the defendant.

2. The defendant should refund the sum of N2,000,000 (Two Million Naira) being the amount expended by the claimant on professional fees for producing a feasibility proposal at the defendant’s behest.

3. The sum of N5,000,000.00 (One Million Naira) (sic) is hereby awarded as general damages in favour of the claimant.

4. I hereby order the payment of interest on all judgment sums at the rate of 10% (Ten per cent) per annum from the date of delivery of judgment in this suit until final liquidation of the judgment debt.

5. I also award the sum of N5,000,000.00 (Five Million Naira) to the claimant as the cost of the claimant’s solicitor’s fees.”

His Lordship refused to grant the reliefs for pre-judgment interest and projected loss of income from the ship. He was of the view that those reliefs were not proved and or not awardable.

The defendant/appellant, dissatisfied by the said judgment, lodged a nine-ground notice of appeal against it on 17/03/2014. It later substituted it with a ten-ground amended notice of appeal filed on 20/03/2015 which it obtained the leave of this court on 14/04/2015 to regularize. From those ten grounds of appeal, its counsel Samuel Oladoyin Esq. formulated the following five issues for determination:

1. Whether the Lower Court was wrong when it held that only Mr. Eladiya Thompson and Mr. Adubuola Olagoke are competent to challenge the respondent’s claims.

2. Whether the Lower Court was wrong when it held that the appellant improperly remitted the respondent’s equity contribution to Gloriosa Co.

3. Whether the Lower Court was wrong when it found that C.W.4 signed undated blank transfer instruction forms.

4. Whether in the state of the law, the pleadings and evidence before Lower Court, the Lower Court was wrong when it held that the doctrine of withholding evidence must be invoked against the appellant.

5. Whether the respondent proved its case to entitle it to the orders made by the Lower Court.

These five issues were adopted by Mr Ime Nya Asanga for the respondent but couched by him in a positive form to reflect his client’s position as a respondent, even as he argued issues 1 and 4 together which he felt, and I agree, are intertwined. For the records, respondent’s five issues are:

1. Whether the Lower Court was right when it held that only Mr. Eladiya Thompson and Mr. Adubuola Olagoke were competent to challenge the respondent’s claims.

2. Whether the Lower Court was right when it held that the appellant improperly remitted the Respondent’s equity contribution to Gloriosa & co.

3. Whether the Lower Court was right when it held and found that CW4 signed undated blank transfer instruction forms while Eladiya Thompson later completed the forms.

4. Whether in the state of the law, the pleadings and evidence before it, the Lower Court was right when it held that the doctrine of withholding evidence must be invoked against the appellant.

5. Whether the Respondent proved its case to entitle it to the orders made by the Lower Court.

Before I proceed to consider counsel’s arguments on these issues, I deem it necessary to point out that even the respondent in whose favour the Lower Court entered judgment is not also satisfied with its refusal to grant its claims for pre-judgment interest and for awarding it only N5,000,000 for solicitor’s fees instead of the total sum of N20,000,000 it claimed under that head. It argues that the Lower Court was wrong in its decision on those two claims. It wants this court to ‘vary’ the judgment of the Lower Court and grant the said reliefs as claimed by it in its statement of claim. It has not appealed or cross-appealed against the findings and orders of the Lower Court dismissing or not fully granting the said two reliefs; it has simply come by way of Respondent’s Notice filed on 15/04/2014 pursuant to Order 9 Rule 1 of the Rules of this Court. Its counsel Mr. Asanga canvassed arguments in respect of his complaints in the said Notice. He made them issues 6 and 7 of his client’s brief of argument.

The appellant in turn picked issues with the procedure of Respondent’s Notice adopted by the respondent in seeking to set aside findings made by the Lower Court for refusing to grant, or not granting fully, reliefs sought by the appellant; it is of the view that the appropriate procedure for the respondent to question those findings and seek their reversal as the respondent is doing ought to be by a substantive appeal in the form of a cross-appeal and not a Respondent’s Notice. It relies on Adekeye v. Akin-Olugbade (1987) 3 NWLR (PT 60) 214 and Arisons Trading & Engineering Co. Ltd v. Military Governor of Ogun State (2009) 15 NWLR (PT1163) 26. It canvassed this argument in its Reply Brief where it also gave Notice of its objection to the Respondent’s Notice. Its counsel Mr. Samuel Oyadoyin urged us to strike out the said Respondent’s Notice as well as the arguments canvassed by respondent in issues 6 & 7 of its brief of argument. Counsel canvassed alternative arguments too on the merits of the arguments in the Respondent’s Notice in case his objection does not find favour with us.

I think I need to first address this preliminary objection of the appellant against the Respondent’s Notice, even more so as the issues raised therein border on the jurisdiction of this court, because if the respondent has not truly properly invoked the jurisdiction of the court to hear it on the issues raised in its Respondent’s Notice as the appellant is suggesting, any attempt to consider respondent’s arguments therein on their merits will be a wasted effort.

Now, Order 9 Rule 1 (including its Rule 2) of the Rules of the Court of Appeal 2011 providing for Respondent’s Notice pursuant to which the respondent founded its Notice provides thus:

Respondent’s Notice of Contention

1. A respondent who, not having appealed from the decision of the Court below, desires to contend on the appeal that the decision of that court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect, specifying the grounds of that contention and the precise form of the order which he proposes to ask the Court to make, or to make in that event, as the case may be.

2. A respondent who desires to contend on the appeal that the decision of the court below should be affirmed on grounds, other than those relied upon by that court, must give notice to that effect specifying the grounds of that contention.

Fortunately, there is no dearth of authority on interpretation of this provision, slippery as it seems to be and has actually been the bane of many respondents. It is in fact an over-flogged area of the law and the decisions of the apex court in L.C.C. V. Ogundemuren in Suit No SC/335/69 of 26/11/71; L.C.C. v. Ajayi (1970) 1 ALL NLR 291; Adekeye v. Akin-Olugbade (1987) 3 NWLR (PT 60) 214; Eliochin (Nig.) Ltd v. Mbadiwe (1986) 1 NWLR (PT 14) 47 and several others, all of which a full panel of the Supreme Court reviewed in Williams v. Daily Times of Nigeria Ltd (1990) 1 NWLR (PT 124) 1 attest to that. There – Williams v. Daily Times of Nigeria Ltd supra – the apex court(Coram Bello C.J.N., Obaseki, Eso, Nnamani, Uwais, Kawu, Agbaje JJ.SC) reaffirmed unequivocally that a Respondent’s Notice under the then Order 8 Rule 3 of the 1985 Rules of the Supreme Court (the Supreme Court has wisely done away with Respondents Notice in its current Rules) which is in pari materia with Order 9 Rule 1 of the rules of this Court cannot be used to reverse findings of Court as is being sought to be done here; that the proper tool for that is a cross-appeal. Their Lordships all quoted with approval the statement of the law by Udoma J.S.C. in the earlier case of LCC v. Ogundemuren supra, where His Lordship interpreted similar provisions of the Supreme Rules thus:

“On a true construction, these provisions contemplate that the party applying for variation or confirmation of the judgment was a successful party in the court below in respect to that aspect of the judgment for which he requires variation.

We do not think that even on a liberal interpretation, these provisions could ever be held to contemplate a situation wherein an application for variation or confirmation of a judgment ‘on grounds other than those relied on by the court’ would be entitled to ask for the complete reversal in his favour of the finding of fact made or judgment of the court given against him on certain issues contested in the case, even though the respondent succeeded in the court below on a number of other issues. Such is the nature of this application made to us by counsel for the 1st respondent. He seeks that the Court should reverse findings of fact which had been made by the Court below against him and which had resulted in his being denied the relief which he had sought’.

Eso J.S.C. who read the lead judgment concluded thus on this issue at p. 28:

“…it is my view that any respondent seeking to set aside a finding which is crucial and fundamental to a case can only do so through a substantive Cross Appeal and shall not do so by an application to affirm or vary the judgment on other grounds.”

Italics as in the judgment.

The same point was made in Eliochin’s case supra with Kazeem J.S.C saying at p.68 that:

“….during the appeal, learned counsel for the respondent attacked those findings of the Court of Appeal. But he could not do that without specifically cross-appealing against those findings of fact. See African Continental Seaways Ltd. V. Nigerian Dredging Roads and General Works Ltd. (1997) 235 where the respondent had filed a similar notice and this court made the observation that:

‘We would like to say here… 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.

And per Oputa J.S.C. @ p.73:

“A respondent can only come under Order 8 Rules 3 of the Supreme Court Rules (or the old Order 7 Rule (13) if on the facts and on the law the decision of the court below will in any event be affirmed.”

See also Anyaduba v. N.R.T. Co. Ltd (1990) 1 NWLR (PT 129) 397 @ 406 (S.C.).

Here it is not in dispute that the Lower Court gave specific reasons for its decision not to award pre-judgment interest to the respondent and for awarding only N5m as solicitor’s fees instead of the full sum of N20m it claimed. In respect of the pre-judgment interest that it refused to award, it said:

‘There was no evidence before me that pre-judgment interest was contemplated by the parties. I also do not think that it would be equitable to award pre-judgment interest in view of the claim for post-judgment interest and general damages. This head of the claim is accordingly dismissed.”

Mr. Asanga in fact quoted this reason of the Lower Court in paragraph 4.5.7 of his brief of argument but argued that it was wrong because the respondent proved the pre-judgment interest it claimed.

With regards to the claim for solicitor’s fees, the Lower Court also gave its reasons for awarding only N5m instead of N20m the respondent claimed. It said:

“As to the claim of the cost of this action inclusive of the claimant’s Solicitors’ fees of N20,000,000.00 (Twenty Million Naira), it must be stated that such must be specifically claimed and pleaded. It was the evidence of the CW4 that the professional fees of counsel for commencing and prosecuting this suit was the sum of N20,000,000.00 (Twenty Million Naira) out of which he had paid a deposit of Five Million Naira Only. The witness was not successfully taken up on this. Exhibit 23 was the claimant’s counsel bill of charges presented to the claimant. It was titled “Ime Assanga & Co Fee Note”. I believe that the claimant had proved that the sum of Five Million Naira had been expended on counsel’s fee to which it was entitled by way of special damages. Where a party claims a particular amount but was able to prove less, a court has the power to award the less amount proved. See First Bank of Nigeria Plc v. Dr Abdulkadir Oniyangi (2000) 6 NWLR (PT 661) 497 @ 513.”

Again Mr Asanga for the respondent criticized this holding and argued that the respondent proved the N20m it paid him (Asanga) and in any case the appellant did not even challenge it, meaning that it was admitted and so proved.

The question is, whether the Lower Court having so clearly given reasons for it decisions not to award a relief at all or to award less than was claimed by a successful respondent/claimant can that same respondent approach the appellate court, criticize the decision of the Lower Court on that issue and then urge this court by way of Respondent’s Notice to reverse that decision and award the claim rejected by the Lower Court or grant in full the amount claimed by it? On the weight of the authorities, a Respondent’s Notice is certainly inappropriate; the respondent can only properly do what it is trying to do with a cross-appeal. It is noteworthy that what Daily Times Nig. Ltd sought in Williams v. Daily Times Nig. Ltd supra to vary by Respondent’s Notice instead of cross-appeal was a simple further downward review of the damages awarded against it by the trial High Court which had been already reviewed downwards by this Court in its favour on appeal. That is similar to, if not even less onerous than, what the respondent wants us to do for it concerning the solicitor’s cost of N5m the Lower Court awarded it as against the N20m it claimed and which it wants us to award. The apex court said it could not even seek a downward review by Respondent’s Notice. Here the respondent wants us to grant what the Lower Court did not even grant. That is a big request by way of Respondent’s Notice. I think only a cross-appeal can be used to achieve the purposes sought by the respondent in its Respondent’s Notice. On the strength of the foregoing, I uphold the appellant’s preliminary objection and hereby strike out the Respondent’s Notice filed by the respondent together with issues 6 and 7 of its brief of argument based thereon.

With that I come to the merits of the appeal. Here I must say that I agree with Mr Asanga that issues 1 and 4 are so intertwined that they are better argued together. I shall even go further to address the five issues by starting from issue 3 of both parties concerning the correctness or otherwise of the Lower Court’s finding that it was Mr Eladiya Thompson Temitope the appellant’s Ado-Ekiti Relationship Manager and not the CW4 that completed the transfer instruction Forms the appellant used to transfer the respondent’s funds to Gloriosa Co. I think that is a key issue in the appeal, so much so that if the Lower Court was correct in the course it took by comparing the handwritings on the forms and making the finding it made, even the correctness of its invocation of the presumption of withholding evidence and its consequence regarding the appellant’s said two Managers and whether appellant’s internal auditor Mr Kosemani Temitayo was a competent witness and his evidence was not hearsay will lose much, if not even all, of their relevance despite the tedious arguments canvassed on them by counsel.

When I am through with issue 3, I shall then take on the closely related Issue 1 of the respondent which is issues 1 and 4 of the appellant. After resolving that issue, I shall then proceed to issue 2 of whether the transfer of the respondent’s fund by the appellant was proper. After that I shall address the omnibus issue 5 of whether the respondent proved its claim.

Issue 3

Issue 3 is whether the Lower Court was wrong (or right) when it found that C.W.4 signed blank undated transfer instruction forms while respondent’s then Ado-Ekiti Branch Relationship Manager Eladiya Thompson Temitope later completed them with his own hand.

In arguing this issue, Mr Samuel Oyadoyin for the appellant in his brief of argument first referred us to the respondent’s averments in paragraphs 18 and 19 of the statement of claim which read thus:

“18. Since the claimant’s Managing Director/CEO resides in Ijebu Ode, Ogun State -a considerable distance from Ado-Ekiti, Ekiti State- he was advised by the defendant’s Ado-Ekiti Branch Manager and the Relationship Manager to sign and leave with them, on trust, blank undated funds transfer forms to facilitate a seamless and timely remittance of the price to the ship sellers in foreign exchange as soon as the bank’s part was ready.

19. The Claimants Managing Director/CEO accepted this advice in good faith and did sign, in blank, several Transfer Instruction Forms which he left with the Branch Manager upon trust and as advised.”

Paragraphs 22 and 23 of C.W.4’s written statement on oath, counsel pointed out, are essentially a repetition of the aforementioned averments of paragraphs 18 and 19 of the statement of claim. He said throughout the length and breadth of the statement of claim there is no shred of averment as to who in particular completed the transfer instruction forms after C.W.4 had signed it. The law is trite, he argued, that evidence led of facts not pleaded goes to no issue. Despite that lack of averment on the actual staff of the appellant that completed the forms, the Lower Court, he complained, held ‘strangely,’ according to him, that a comparison of the signatures and the other writings on the Funds Transfer form clearly showed that the writings were the same with the signature of Eladiya Thompson, the appellant’s Ado-Ekiti Branch Relationship Manager. Counsel argued that even assuming that the respondent had pleaded that Eladiya Thompson completed the transfer instruction forms, which he said it did not, the respondent would still have needed to prove that assertion by positive evidence. He cited Section 93(1) of the Evidence Act which provides that:

“93 (1) if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.”

He argued that the burden placed on the respondent by Section 93(1) in this regard is a very heavy one the first reason behind being that upon a careful perusal of the statement of claim it becomes apparent that the respondent’s real allegation was that C.W.4 was asked to sign and leave blank undated transfer instruction forms with the appellant to facilitate the perpetration of fraud on the respondent. Counsel referred us to the averment of the respondent in paragraph 26 of its statement of claim where it said ‘the claimant avers that the transfer of the said sum of $142,500.00 was fraudulent, negligent and in gross and flagrant breach of trust.’ He placed emphasis on the word ‘fraudulent’ and observed that the respondent even gave particulars of the fraud. He submitted that under the Criminal Code of Oyo State (blunderingly referring to the State where he practices) it is trite law that fraud is a criminal offence and has to be proved in any proceeding be it criminal or even civil as in this case, citing Section 135(2) Evidence Act and Babatunde v. Bank of the North Ltd (2011) 18 NWLR (pt. 1279) p. 738 at 762.

Secondly, counsel argued, there ought to be a presumption against the respondent’s contention that he signed blank undated transfer instruction forms. He observed that the transfer instruction forms are contained in a bundle of documents admitted as Exhibit 8, with each form having only a page each with the signatures appearing right at the foot of the page. Counsel then called in aid the statutory presumption of common course of events in Section 167(c) of the Evidence Act to argue that in the common course of business, a businessman of full age and discretion like C.W.4 does not sign blank undated transfer instruction forms and leave them with someone else to complete. He argued, very interestingly, that “the information contained in the transfer instruction forms was available from inception’. He said the Lower Court should have taken judicial notice of the fact that Ijebu-Ode to Ado-Ekiti is not quite a distance and considering the amount of money involved traveling all the way from Ijebu-Ode to Ado-Ekiti should have been worth the trouble so C.W.4’s reason for the alleged ‘unusual arrangement’, he submitted, was ‘queerly untenable’ and the Lower Court ought to have taken it with a pinch of salt. Above all, he argued, proof that Eladiya Thompson Temitope completed the transfer instruction forms entails much more than viva voce testimony of C.W.4, which evidence, CW4, he added, did not give. Counsel referred us to the ways of proving a disputed signature or handwriting as provided for in Section 101(1) of the Evidence Act. He argued that if the respondent had pleaded specifically who completed the transfer instruction forms, it would have been necessary for such person to attend court to enable the court obtain his/her handwriting having regards to Section 101(2) of the Evidence Act which provides that “The court may direct any person present in court to write word or figure or to make finger impressions for the purpose of enabling the court to compare the words, figures or finger impressions so written with any words, figures or finger impression alleged to have been written or made by such person.” It is when such specimen has been obtained that the court may then compare the disputed hand writing with it, he submitted, citing Adenle v. Olude (2002) 18 NWLR (pt. 799) p. 413 at 432 and Daniel Kalio v. Daniel Kalio (2005) 4 NWLR (pt. 915) p. 305 at 323. In the light of the said provisions of the Evidence Act, he contended, Eladiya Thompson Temitope was a vital and material witness for the respondent on the question of whether he completed the transfer instruction forms and failure to call him to testify was fatal to the case of the respondent and there is no basis for the Lower Court’s finding that the said Eladiya Thompson Temitope completed those forms. Counsel cited Alake v. State (1991) 7 NWLR (pt. 205) p. 567 at 602 paras. A-D; R v. Kuree (1941) 7 W.A.C.A. 175 at 177; Wambai & Anor. v. Kano N.A. (1965) N.M.L.R. 15. While the respondent failed to adduce evidence as to who exactly completed the transfer instruction forms, counsel argued, there was evidence on which the Lower Court could have found that neither Eladiya Thompson Temitope nor Adubuola Olagoke completed them. Counsel then called in aid Section 72(1) & (2) of the Evidence Act which provides that “When the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person is admissible, (2) A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when in the ordinary course of business, documents purporting to be written by that person have been perpetually submitted to him” and referred us to the evidence led by the appellant at the Lower Court through its internal auditor Mr. Kosemani Temitayo, D.W.2, where the witness deposed in paragraphs 1 and 2 of his witness statement that:

1. That I am a resident auditor in the employment of the Defendant

2. That I came into the employment of the Defendant sometimes in the year 2007.

And testified under cross-examination that:

“As an internal Auditor, any document to be processed must pass through my table for screening”

which evidence, counsel argued, was not challenged yet the Lower Court held that:

“Though the evidence of the DW2 as to the handwriting of Eladiya and Adubuola were admissible, the question of weight to attach to it is another kettle of fish altogether.”

He argued that it is the duty of a judge to consider the totality of the evidence before him and to determine which has weight and which does not by putting the evidence on the imaginary scale. He cited Mogagi v. Odofin (1978) 4 S.C. 91 at p. 93, adding that minimum evidence can discharge the burden of proof where there is no evidence to be put on the other side of the scale, for which he cited Buraimoh v. Bamgbose (1989) 3 NWLR (pt. 109) 352. He submitted that it is reasonable to conclude that the evidence led by the appellant through D.W.2 was neither challenged nor contradicted and there was nothing to show that the evidence was incredible. Counsel argued that it was in any case shown that Eladiya Thompson had left the service of the appellant before this case was filed in the Lower Court, even as he added that appellant’s main grouse is in any case that it was not the case of the respondent that Eladiya Thompson completed the transfer instruction forms, which fact he said the respondent did not plead, and being a material fact that is not pleaded, it is inadmissible, citing Ipinlaye v. Olukotun (1996) 6 NWLR (pt. 453) p.148 at 172 paras C-D. Counsel thus complained that the Lower Court made a case for the respondent by saying that it was its case that Eladiya Thompson Temitope completed the said forms, which he said it was not supposed to do that as an arbiter. Counsel cited Aikhadueki v. State (2014) 15 NWLR (pt. 1431) p. 530 at 546; Adimora v. Ajufo & ors. (1985) 2 NWLR (pt.5) 1; Agbeje v. Ajibola (2002) 2 NWLR (pt. 750) p. 127 at p. 141; Nwaogu v. Atuma (2013) 11 NWLR (pt 1364) p. 117 at p. 139-140 paras G-A; Ajayi v. Total (Nig.) Plc (2013) 15 NWLR (PT 1378) p. 423 at 452 on this point. Counsel finally urged us to resolve this issue in appellant’s favour.

In response, Mr Asanga for the respondent first submitted that the duty of the court is to determine the issues before it on the pleadings of the parties. Referring to paragraphs 18 & 19 of the statement of claim, learned counsel pointed out that the respondent averred that upon the advice of the appellant, its Managing Director/CEO signed and left with the appellant several blank, undated transfer instructions forms; that it went on in paragraph 26 (b) of the pleadings to state categorically that those blank undated Transfer Instruction Forms “were completed and utilized by the Appellant’s Branch and Relationship Managers in their handwriting and their sole discretion.” Supporting evidence in proof of these averments he said was adduced in paragraphs 22, 23, and 30 (b) of the sworn deposition of CW 4, the MD/CEO of respondent, which evidence, he added, was neither controverted nor challenged – that the appellant did not deny the said paragraphs 18, 19 and 26 of the statement of claim in their material particulars; that even in paragraph 26 of the sworn deposition of the appellant’s star witness Mr Kosemani Temitope, DW2, there was no denial of the respondent’s evidence that the said forms were subsequently completed and utilized by the appellant’s Branch and Relationship Managers in their own handwriting and sole discretion. Counsel therefore urged us to find and hold that in the light of the un-traversed pleading and unchallenged evidence on the point the Lower Court was right when it found that CW4 signed undated blank transfer instruction forms while Eladiya Thompson later completed them.

Resolution of issue

To properly appreciate this issue of whether the Lower Court was wrong or right when it found that C.W.4 signed blank undated transfer instruction forms while Eladiya Thompson Temitope later completed them in his own hand, it is necessary to first set out the relevant portion of the pleadings of the parties. I shall start from the Further Amended Statement of Claim of the respondent. Counsel for the appellant placed heavy reliance on paragraphs 18 and 19 of the said Further Amended Statement of Claim to submit that ‘throughout the length and breadth of the statement of Claim [and the CW4’s witness statement] there was no shred of averment as to who in particular completed the transfer instruction forms after C.W.4 had signed it’ and so the Lower Court was wrong to hold that it was Eladiya Thompson Temitayo that signed them when there was also no evidence to support it. The said paras 18 and 19 counsel cited to support his ‘throughout the length and breadth of statement of claim and witness statement’ have been earlier reproduced by me when considering appellant’s counsel’s argument, but for ease of reference, they read thus:

I am afraid learned counsel read only part of the respondent’s pleading to arrive at his conclusion, and he is not supposed to do that but read the entire pleading. If counsel had read further down that pleading to paragraph 26(b) he would have seen where the respondent specifically averred that:

26(b) The document with which the defendant completed the transfer funds was signed, on trust, by the claimant’s Managing Director/CEO in blank and subsequently completed and utilized by the defendant’s Ado-Ekiti Branch and Relationship Managers in their handwriting and at their sole discretion.

Emphasis mine.

The said respondent’s Managing Director/CEO, CW4, in paragraph 30(d) of his witness statement deposed on 29/04/2013 which he adopted as his evidence-in-chief on 04/07/2013, said that:

The document with which the defendant completed the transfer funds was signed, on trust, by me in blank and subsequently completed and utilized by the defendant’s Ado-Ekiti Branch and Relationship Managers in their handwriting and at their sole discretion.

It is common ground that the appellant’s Ado-Ekiti Branch and Relationship Managers at the relevant time were Goke Adubuola and Eladiya Thompson Temitope the latter of whom His Lordship of the Lower Court found was the person who actually completed the transfer forms appellant used to transfer the respondent’s funds. So the windy submissions of the appellant’s counsel to the effect that the Lower Court relied on no evidence and or made a case for the respondent by its finding that his client’s Branch Manager Eladiya Thompson Temitope was the person who actually completed the transfer forms is of no avail to him and his client.

The other issue is appellant’s counsel’s submission that the respondent pleaded fraud so it had a duty to prove it beyond reasonable doubt irrespective of the fact that this is a civil proceeding. His statement of the law cannot be faulted at all, at least on the dry bones of the law; for fraud once alleged has to be proved beyond reasonable doubt. In fact that point does not need citation of cases, Section 135(1) and (2) of the Evidence Act makes it clear that

(1) If the commission of a crime by any party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.

(2) the burden of proving that any person has been guilty of a crime or other wrongful act is subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.

While that is the position of the law, and without prejudice at all to the Lower Court’s finding (as shall be shown later) that the respondent even proved fraud on the part of the appellant, it need be stressed too that (1) it is not the law that fraud is not provable at all, and (2) the respondent did not just hang its case on the peg of fraud alone, it added too that the appellant was also ‘negligent and in gross and flagrant breach of its duty of trust.’ That is evident from paragraph 26 of its amended statement of claim where it pleaded that:

26. The claimant avers that the transfer of the said sum of $142,500.00 was fraudulent, negligent and in gross and flagrant breach of trust.

It then went on to set out directly in that paragraph detailed ‘particulars of fraud, negligence and breach of trust.’ Now, negligence and breach of trust as pleaded by the respondent are civil allegations which has to, and can, be proved on the civil standard of balance of probability, after all the law is well settled that even where a claimant raises criminal allegations but they do not form the core of his/her case, he/she can prove it on the civil standard of balance of probability. That point is supported by Nwobodo v. Onoh (1984) 1 ALL NLR 1 @ 77 and Omoboriowo v. Ajasin (1984) ALL NLR 105 @ 110 both of which were again referred to by the apex court in its more recent decision of Chief Victor Ndoma-Egba v. A.C.B. (2005) 14 NWLR (PT 944) 79 (S.C). There the claimant, Chief Ndoma-Egba, sued the respondent bank for honouring his firm’s cheque on which his signature as a co-signatory he claimed was forged. He won at the trial court but lost on appeal in this court, with this court holding that having pleaded forgery and fraud, he must prove his case of forgery beyond reasonable doubt which their Lordships said he failed to do. On further appeal by Chief Ndoma-Egba, the apex court, while agreeing with this court that criminal allegations like forgery and fraud must be proved beyond reasonable doubt, held that having regards to the pleadings of Chief Ndoma-Egba in the case where he also alleged negligence and breach of trust on the part of the bank, the allegations of forgery were surplusage and he could prove, and did prove, his case on the ground of negligence and breach of trust on the part of the bank. Interestingly, the apex court also held that the burden of proof that Ndoma-Egba signed the cheques in issue was not on him but on the Bank who was asserting that he signed them (see the short contribution of Pats-Acholonu, J.S.C.). The relevant part of the judgment of the apex court as pronounced by Oguntade J.S.C. is as follows:

“Even if it is argued that the plaintiff had pleaded “forgery” in the sense postulated under Section 137(1) of the Evidence Act, it cannot escape notice that in paragraph 17(iii) and (iv) of the amended statement of claim, the plaintiff had pleaded thus:

“(iii) The defendant is in breach of her duty to the plaintiff in purporting to act on the alleged instructions of one signatory to the account when the plaintiff’s mandate to the defendant was joint, that is, between Victor Ndoma-Egba and Richard D. Ebri acting together.

(iv) The defendant is in breach of her duty of care and negligence to the plaintiff”.

The above two averments wherein the word “forge” was not employed, fully captures the nature and essence of plaintiff’s case. Guided by this, one sees readily that the reference made in some paragraphs of the amended statement of claim to fraud and forgery amounted to unnecessary and surplus averments, which did not in a juridical sense, add any value to the plaintiff’s case. The court below was of the view that the trial court ought to have held the plaintiff to the standard of proof prescribed under Section 137(1) of the Evidence Act. I think, with respect to their Lordships of the Court below that they were wrong to have imposed that extra burden on the plaintiff. It is my respectful view that in order to succeed, the plaintiff only needed to show that the defendant did not abide by the terms of the mandate given it vide exhibit 1 as to who could validly sign cheques and bank instruments on behalf of the plaintiff.”

Here I have pointed out that the learned trial judge, Ogunmoye J., after wading through similar lengthy legal submissions of the appellant’s counsel as has also been put forth before us here, and with the advantage of having the undisputed/genuine signatures/handwritings of all relevant persons, namely the respondent’s MD/CEO, the appellant’s Branch Manager and Relationship Manager, in the transfer forms in evidence before him, made the necessary comparison and found as a fact that it was the appellant’s Relationship Manager Eladiya Thompson Temitope that completed the Forms and not the respondent’s MD/CEO the appellant claims completed them. Part of his judgment on that reads thus:

“I have therefore gone through exhibit 8 and the copies of the Funds Transfer forms dated 11/1/08 and 17/1/08 contained therein. A comparison of the signatures and the other writings on the funds Transfer forms clearly showed that the writings were the same with the signature of Eladiya Thompson the Accounts officer. The striking similarities were such that one does not need to be a hand writing expert to easily form the correct opinion that the signature and writings were the same; that is that the signature of the accounts officers and the writings belonged to the same person. The documents, in my view, revealed that the character of the signature of the Accounts officer in the transfer forms contained in pages 1 and 2 of exhibit 8 were the same with the writings on the documents. The characters in the said documents bore no resemblance to the character of the signature of the CW4 contained therein.”

The appellant’s counsel argues that the learned trial Judge was wrong in doing that. I disagree with him completely. The trial judge was perfectly entitled to do what he did. In Queen v. Wilcox (1961) N.S.C.C. 274 @ 276 which the apex court even referred to in Ndoma-Egba, it was held by the Federal Supreme Court that:

“It is not unusual for the Courts, in a clear case, to form their own opinion as to handwriting by comparing the handwriting alleged to be that of the appellant with a genuine specimen of his handwriting.”

The apex court in Wilcox v. Queen after itself seeing and comparing the disputed handwriting concluded that:

“In the present case, the dissimilarities between the signatures on the cheque and the genuine signatures of Nwobu are so apparent to the naked eye, and in our view, the course pursued by the learned Judge was not improper in the circumstances.”

Not only has this case been followed severally by other decisions including Ndoma-Egba’s case (see p.105 of Ndoma-Egba’s case), the power of the judge to make the necessary comparison in clear cases like the instant one is amply supported by the provisions of Section 101(1) of the Evidence Act with its provision that:

In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose.

Emphasis mine.

In any case, parties having joined issues on who, as between the appellant’s two Branch Managers and the respondent’s MD/CEO (CW4), completed the said forms; it was incumbent on the trial judge as a judge of not only law but facts too to resolve that issue one way or the other on the basis of the genuine specimen signatures and handwriting of the said three gentlemen on the transfer forms before him. This position was also confirmed by the apex court in Ndoma-Egba’s case,with Oguntade J.S.C., saying first at p.106 – 107 that:

“The findings made by the trial Court upon a comparison of the plaintiff’s signatures on exhibits 1 and exhibits 2, 3, and 4 must therefore be discountenanced.”

And adding that:

“But that is not the end of the matter. As I observed earlier, plaintiff denied that he signed exhibits 2, 3, and 4. P.W.2, the partner of the plaintiff who was familiar with the signature of the plaintiff confirmed that the signatures of exhibits 2, 3, and 4 ascribed to plaintiff were not his. The only defence witness gave the evidence on the point.

There were thus two versions of the evidence before the trial Judge. The version given by plaintiff and P.W.2 needed to be compared with that given by D.W.1. This was a civil case and the trial Judge had the duty to decide which of the two versions of the evidence to accept. He accepted the version of the plaintiff. It was not open to the court below to reverse such findings of fact. See Akinola v. Oluwo (1962) 1 All NLR 224, (1962) 1 SCNLR 352, and Akinloye v. Eyiyola (1968) N.M.L.R. 92. I am satisfied therefore that the trial court was right to have found that plaintiff did not sign the signatures on exhibits 2, 3, and 4 which were ascribed to him.”

Still adding again at p.115 that:

“In coming to the conclusion as to a banker’s negligence, it is always important to look at the disputed signature and compare same with the authentic signature to discover if the dissimilarities are so obvious as to be easily discernible.”

Also in the case of Adenle v. Olude (2002) 18 NWLR (PT 799) 413 which the appellant’s counsel relied on both at the Lower Court and before us on the proper procedure for the court to employ when faced with disputed signatures, the apex court per Uwaifo J.S.C., with the concurrence of his brethren Ogwuegbu, Iguh, Katsina-Alu and Kalgo JJ.SC., in upholding the decision of this court, said at p. 431-432 thus:

“A court must take all relevant evidence before it into account in the resolution of the questions arising from the case it has to decide. In doing so, it must also take into cognizance the relevant provisions of the Evidence Act and all other statutes which have a bearing on the proper decision of the case. The court below was, in my view, correct in pointing out what the learned trial judge obviously failed to do to compare the admitted signature with the disputed signature of DW.1. It was crucial to the justice of the case as the DW1 denied signing exhibit C which is a documentary evidence constituting the foundation of the respondent’s case. In my opinion, the court below was right in doing the necessary comparison. I have also compared the disputed signature in exhibit C with that of DW1 in exhibits D and F and I am satisfied that the one in exhibit C is so unarguably indistinguishable from that in exhibit D as well as exhibit F that the only reasonable conclusion is that it was also signed by DW1. See Teich v. Northern International Market Co. Ltd (1987) 4 NWLR (PT 65) 441, where the provisions of Section 108(1) [now Section 101(1)] of the Evidence Act were considered and applied. It has also been held that it is not unusual for the courts, in a clear case, to form their own opinion as to handwriting by comparing a genuine specimen with a disputed one: see R v. Smith 3 Cr. App. R. 87; R v. Rickard 13 Cr. App. R. 140; R. v. Appea (1951) WACA 143; Wilcox v. Queen (1961) 2 SCNLR 296. I therefore answer issue 1 in the affirmative.”

Emphasis mine.

Incidentally, issue 1 which the apex court answered in the affirmative in Adenle v. Olude is just like issue 3 at hand: it was also ‘Whether the Lower Court was right in making a comparison between exhibits A, B and C and thus coming to the conclusion that DW1 was a signatory to both exhibits”: see p.426 para E of Olude’s case.

Here, I have myself also looked at the said transfer instruction forms and I am in no doubt whatsoever that the respondent’s said Relationship Manager Eladiya Thompson Temitope was the person that actually completed them. It does not need an expert to arrive at that conclusion, because the similarity in the handwriting that completed the forms and that of Eladiya Thompson Temitope in the same forms who incidentally did not just sign but also wrote his name in full in the documents and so left his handwriting bare for useful comparison was the person that completed the forms is so striking. Even his very different pen colour ure further gives him away.

In the instant case the trial judge, quite unlike his colleague in Ndoma-Egba, was not even treading on the much more slippery terrain of comparing relatively forgeable and in fact most times difficult to decipher thing like signature (which the apex court said he could still compare and make a finding), he was rather comparing handwritings which are far more difficult to change or forge. He was in a better wicket and arrived at the correct conclusion that the handwriting that completed the transfer forms in evidence is evidently that of Eladiya Thompson Temitope, the appellant’s Ado-Ekiti Branch Relationship Manager at the material time. Let me also make it clear that it makes no difference at all that the said two officers of the appellant did not testify and so did not again sign their signatures before the court, it suffices that their undisputed handwriting/signatures were before the court to enable it make the necessary comparison, and that satisfies Section 101(1) of the Evidence Act 2011; after all even if the said two men had been called and they denied completing the forms as they presumably would have done, the court would have still relied on their genuine specimen signatures and writings at the foot of the forms to assess their oral testimony. Their presence would have been necessary only if the court did not have their undisputed/genuine signatures/handwritings.

In the final analysis, I resolve this issue against the appellant and hold that the Lower Court was perfectly in order in comparing the undisputed signatures/handwritings of the three gentlemen Adubuola Olagoke, Eladiya Thompson Temitope and the respondent’s MD/CEO Mr Abayomi Ajayi-Smith and finding that it was the appellant’s Relationship Manager, Eladiya Thompson Temitope who completed the transfer instruction forms apparently with details earlier supplied it by the said MD/CEO of respondent as the appellant pleaded. I also agree with it that that act of the appellant’s officers was fraudulent in the circumstances of the case.

Issues 1 & 4.

I now proceed to issues 1 and 4 which are whether the Lower Court was not wrong, or right, when it held that only Mr Adubuola Olagoke and Mr Eladiya Thompson Temitope, the appellant’s Branch Manager and Relationship Manager respectively at the time of the transaction, are competent to challenge the respondent’s claims and whether on the state of the law and pleadings it was wrong, or right, when it held that the doctrine of withholding evidence must be invoked against the appellant.

In attacking the Lower Court’s holding that the said Adubuola Olagoke Temitope and Mr Eladiya Thompson, appellant’s Ado-Ekiti Branch Manager and Relationship Manager respectively at the time of the transaction who dealt with the respondent’s MD/CEO in respect of the transaction were the only persons that could competently challenge the said respondent’s MD/CEO’s claim that he merely signed blank transfer Forms and it was they who completed them in his absence, as against the bank’s claim that he did not just sign but actually completed them before he left them for the bank, the appellant’s counsel, Samuel Oyadoyin Esq first referred us to paragraph 7 of the respondent’s statement of claim as well as paragraph 10 of his statement on oath where respondent averred that:

At all times material to this suit the defendant’s Ado-Ekiti Branch Manager was one Adubuola while the Relationship Manager was one Eladiya Thompson Temitope. These were the only employees of the bank with which I transacted.

Learned counsel then argued/admitted as follows (and I quote him because it is important):

It is not in doubt that the two managers dealt with CW4 in the ordinary course of their duties as employees of the appellant bank, a registered limited liability company.

Emphasis mine.

Counsel then cited the dicta of the apex court first in Marine Management Associates Inc. & Anor. v. National Maritime Authority (2012) 3 NWLR (PT 1333) 506 at 545 par E-F where it held that a company is a juristic person and so it can act through an alter ego, its agent or servants and so the trial Judge there was wrong to have discountenanced the evidence of its employee, PW1. He also cited Saleh v. Bank of the North (2012) 1 BFLR 558 at 564 (also reported in (2006) LPELR-2991) where it was also held that because a company is a juristic person any of its agents or servants can testify to establish any transaction entered into by it, that even where the official giving the evidence is not the one who actually took part in the transaction on behalf of the company such evidence nonetheless is admissible and it will not be discountenanced or rejected as hearsay evidence and so the learned trial judge in Saleh’s case was wrong to reject such evidence. In the light of those pronouncements in which the apex court followed its earlier decision in Kate Ent. Ltd v. Daewoo (Nig.) Ltd (1985) 2 NWLR (PT 5) 166, counsel argued that the Ogunmoye J. was wrong to hold that it is only the said two former employees of the appellant Messrs Adubuola Olagoke and Eladiya Thompson Temitope that were competent witnesses to the transaction in issue and not its internal auditor Mr Kosemani Temitayo, DW2, whose evidence he dismissed as weightless.

On whether on the state of the law, the pleadings and evidence before the Lower Court it was wrong or right when it held that the doctrine of withholding evidence must be invoked against the appellant, learned counsel complained that at every turn in the Lower Court’s judgment it held that the doctrine of withholding evidence must be invoked against the appellant for not producing its former employers Eladiya Thompson and Mr. Adubuola Olagoke who alone can challenge the respondent’s claims, especially C.W.4’s evidence. Counsel argued that Section 167(d) of the Evidence Act which the Lower Court relied on has to do with non-production of evidence and not failure to produce a particular witness, a distinction he argued is significant because there is a difference between a witness and the evidence which that witness gives, citing Odunlami v. Nigerian Navy (2013) 12 NWLR (pt. 1367) p. 20 at 58-59. In the instant case, he said, the Lower Court made heavy weather of the fact that the appellant did not call its erstwhile Relationship Manager. He argued that the resolution of this issue against the respondent is enough to upturn the judgment of the Lower Court. In the Lower Court, he said, D.W.2 gave evidence to the effect that the money in the current account of the respondent was in respect of the Advance payment Guarantee. In determining the case before it the Lower Court formulated two issues, the first issue being in essence whether the money in the current account of the respondent was indeed in respect of the Advance payment Guarantee as opposed to the respondent’s equity contribution to the purchase of the oil tanker vessel mentioned earlier. The Lower Court resolved that issue against the appellant. At page 363 of the records, the Lower Court held:

“Be that as it may, only the Branch Manager and the Relationship Manager who were in the ‘eyes of the storm’ were in a position to contradict the C.W.4 as to reason for the deposit of the sum of 101 million in his current account. This they failed to do.”

Here again, he argued, the Lower Court’s reason for finding that the C.W.4 truly signed blank undated transfer instruction forms which were later completed by the appellant’s officers is that the appellant failed to call its Relationship Manager and the Branch Manager to disprove that claim. Counsel argued that, considering that the appellant is only an artificial person in the eyes of the law, it does not insist that only those employees directly involved in the transaction that led to this case are competent to testify on it. The Lower Court’s holding to the contrary, counsel submitted, is thus only ‘a storm in a teacup.’ Counsel then pointed to Exhibit 1, a letter written by Mr. Ime Asanga to the Central Bank of Nigeria on behalf of the respondent, where Mr Asanga asserted that “Furthermore, the said bank granted soft landing to the principal perpetrators of this scam namely the Branch Manager Adubuola Olagoke and the Relationship Manager Eladiya Thompson Temitope by allowing them to resign and take up employment in another bank” which counsel argued suggested that Mr. Adubuola and Mr. Eladiya Thompson Temitope are no longer in the employment of the appellant, and there is no evidence whatsoever to suggest that they are. He argued Exhibit 1 in fact shows that the respondent knew the whereabouts of the two gentlemen, it therefore follows, he said, that it (respondent) knew what to do to get them to testify for it but failed to do so. He argued that the respondent’s case having succeeded ‘due largely’ to the Lower Court’s misconception that Mr Olagoke and Mr Eladiya Thompson were still in the employment of the appellant and the appellant refused to call them because they would give evidence that would be unfavourable to the appellant, the result is that the decision of the Lower Court is perverse, citing Henshaw v. Effanga (2009) 11 NWLR (pt. 1151) 89.

In his response, Mr Asanga for the respondent pointed out that the issue is that certain comments, statements and actions which were critical to the subject-matter of the suit were ascribed to only the said Mr. Adubuola Olagoke and Mr. Eladiya Thompson Temitope to the exclusion of any other staff consequently they alone could give credible and direct evidence in respect of those comments, statements and actions and so they ought to be called by the appellant to refute them. The failure by the appellant to call them, he argued, is tantamount to withholding their evidence. He said the respondent having pleaded and led oral evidence to prove that the transfer Instructions Forms were only signed by him in blank and even undated and it was the appellant’s two aforementioned officers that later completed them without his knowledge and made the controversial transfer of its funds, the onus of proof shifted to the appellant to establish its assertion that that was not true and it was CW4 that completed them. He referred to Section 136(1)&(2) of the Evidence Act 2011 and reproduced the provisions of Section 136(2) which states that “in considering the amount of evidence necessary to shift the burden of proof regard shall be had to the opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties respectively.” He argued that both the appellant and the respondent knew the state of the relevant transfer Forms in issue when the respondent’s CEO, CW4, signed them and yet they disagree on it, it is therefore incumbent on the appellant to call the said two employees to support its case and its failure to do so amounted to withholding evidence as the said two men alone had the knowledge to testify to it having regard to the issues joined on the pleadings. Counsel referred us to the provisions of Section 126 of the same Evidence Act which says oral evidence must in all cases be direct and if it refers to a fact which can be seen or heard it must be the evidence of someone who says he saw or heard that fact that fact, which he said as regards the issue of the state of the Transfer forms at the time CW4 signed them it is only Messrs Adubuola Olagoke and Eladiya Thompson Temitope that were present and can testify to it. He argued that the fact that the appellant is an artificial person recognized by law does not exclude it from the said provisions of Section 126 of the Evidence Act and that the peculiar facts of this case distinguishes it from Kate Ent. Ltd v. Daewoo (Nig.) Ltd (1985) 2 NWLR (PT 5) 166; Saleh v. Bank of the North (2012) 1 BFLR 558 at 564 (also reported in (2006) LPELR-2991) and Marine Management Associates Inc. & Anor. v. National Maritime Authority (2012) 3 NWLR (PT 1333) 506 and so makes them inapplicable. The failure of the appellant to call its said two employees, former or present, amounts to withholding evidence as the Lower Court held, he argued, adding that the issue is not whose employees they are but whose witnesses they should be; that at the worst the appellant could have subpoenaed them even if they were no longer in its employment.

On the appellant’s argument that the contents of one of the letters of the respondent suggests that it knew where the two gentlemen in question were presently and so it ought to call them to support its case, learned counsel replied that being in the employment of appellant at all relevant times and principal actors in this action they were adversaries and potentially hostile witnesses to the respondent but on the other hand material witnesses to the appellant. Counsel then cited a number of cases including Pharmacists Board of Nigeria v. Adegbesote (1986) 10-11 S.C. 97-121, Opolo v. The State (1977) ALL NLR 312 @ 317, Oboro v. R.S.H. & P.D.A. (1997) 8 NWLR (PT 521) 452 @ 441; N.S.C.N. Ltd v. Innis Palmer (1992) 1 NWLR (PT 218) 422 @ 441; JALLCO v. Owoniboys Technical Services Ltd (1986) 10-11 S.C. 97-121 to say that the Lower Court was justified in invoking the presumption of withholding evidence in Section 167(d) of the Evidence Act 2011 to hold that the appellant did not bring them because if it had done so their evidence would have been against it. Mr Asanga also cited the case of Tukuru v. Sabi (2005) 3 NWLR (PT 913) 244 @ 562 where this court, per Akaahs JC.A., as he then was, held that the provisions of Section 167 of the Evidence Act attaches to the production of relevant documents which may be oral or documentary and if the evidence concerns seeing or hearing then it must be the evidence of witnesses who heard or saw it that must be called. Counsel urged us to resolve this issue against the appellant.

In answer to the submission of the respondent that the two gentlemen in question were its adversaries and so their evidence would be potentially hostile to it, Mr Oyadoyin in respondent’s reply on points of law filed on 05/05/2015 argued that there is a procedure in the Evidence Act for treating a hostile witness which the respondent could have resorted to where necessary, citing Al-Mustapha v. The State (2013) 17 NWLR (PT 1318) 350 @ 422 and Shofolahan v. The State (2013) 17 NWLR (PT.1383) 281 @ 319. Counsel submitted that in any case, fears of hostility were unfounded as the said two men had already left appellant’s employment. He then listed the factors which must all exist before the presumption of withholding evidence can be invoked, namely that the evidence exists, that it could be produced by the application of due diligence and knowledge; that it was not produced and that it was withheld by the other party, Counsel said in actual fact the presumption is actually in appellant’s favour and should be invoked against the respondent rather than the other way round. He said the respondent did not even specifically plead which of the said two men actually completed the transfer forms yet it says it was their evidence that could challenge its MD/CEO’s assertion that they and not he filled the said forms. He argued that by the respondent’s contention in its letter that the said two men were now in another bank it had shown that their whereabouts are peculiarly within its knowledge within the meaning of the same Section 136(2) of the Evidence Act relied on by Mr Asanga to invoke the presumption of withholding evidence against it, and having failed to produce them the respondent he said had “clearly failed to discharge the burden of proof on them” and so it (burden of proof) remains on it the duty to produce them.

As regards the respondent’s argument on Section 126 of the Evidence Act and its submission that only persons who say they saw or heard a thing can testify to it, which excludes DW4 Kosemani Temitayo, its internal auditor who did not witness the transaction between the respondent’s MD/CEO and the appellant’s then two officers and so not in a position to give valuable evidence on what transpired between them concerning the completion of the transfer forms, counsel argued that Section 126 makes itself subject to Part 111 of the Evidence Act, which means there are exceptions to Section 126. He submitted that in any case the principle established in Kate Enterprises Ltd v. Daewoo concerning a juristic person like a company means that it is ‘an exception to the rule excluding hearsay evidence.’

Resolution of issue

Now, in the course of his argument on this issue the appellant’s counsel described as ‘storm in a teacup’, the holding of the Lower Court that Mr Eladiya Thompson Temitope and his colleague Mr Olagoke were the only competent persons to controvert the respondent’s MD/CEO’s assertion that they completed the transfers forms themselves and the failure of the appellant to call them to deny that assertion amounted to withholding evidence. Incidentally that is just how I also consider all the arguments of the appellant’s counsel on these twin issues -a storm in a teacup- in the light of the same Lower Court’s finding, after comparing the genuine and undisputed signatures/handwriting of all three gentlemen in question and arriving at the conclusion, that the appellant’s Relationship Manager Eladiya Thompson Temitope it was that actually completed the said forms in his own hand, which finding I have here also confirmed. That being the case, the additional statement of the Lower Court that Messrs Adubuola Olagoke and the said Eladiya Thompson Temitope were the only competent witnesses and not appellant’s internal auditor Mr Kosemani Temitayo who testified for it as DW2, and/or that the failure of the appellant or respondent to call those two gentlemen to deny the respondent’s MD/CEO’s evidence amounts to withholding evidence are all at best surplusage or obiter dictum which do not affect or whittle down its specific and concrete finding that the appellants’ Relationship Manager completed the said transfer instruction forms. Put differently, in the face of that finding, the pronouncements of the Lower Court regarding the competence of DW2 and presumption of withholding evidence by reason of the absence of the said managers and the arguments by counsel on the correctness or otherwise of those statements all become very academic.

But even going further to address the issues here, albeit only out of abundance of caution, I want to first say that I have read Kate Enterprises v. Daewoo as well as the other cases of Saleh v. Bank of the North (2012) 1 BFLR 558 at 564 (also reported in (2006) LPELR-2991) and Marine Management Associates Inc. & Anor. v. National Maritime Authority (2012) 3 NWLR (PT 1333) 506 and I did not see anywhere there where the apex court said Section 126 of the Evidence Act does not apply to artificial juristic persons like an incorporated company and so anybody from a corporate body including a person who is not a witness to a transaction and has not even had the benefit of going through relevant documents of a company or oral transactions he was not privy to and/or has not properly acquainted himself with them can testify to a disputed transaction on such issue in court. All I can extract from the statements of their Lordships in those cases is that because of the peculiar nature of a company as a juristic person which can only think or act through natural persons, it can only also testify in court through natural persons who either have personal knowledge of a transaction or who by the nature of their schedule of duty in the company have acquainted themselves properly with the transaction in question. For instance, in Kate Enterprises Ltd v. Daewoo which is the first decision of the apex court on this point, the issue was about a supply of building materials by the respondent to appellant pursuant to the order of the appellant. The appellant, Kate Enterprises, after taking delivery of the goods refused to pay for them and rather denied even the supply by the respondent thus making the respondent sue for its debt. At the trial, the only witness the respondent called to prove the supply of the material was its Sales Manager who testified that all the goods arrived in Nigeria and were supplied the appellant. In dismissing the respondent’s case, the trial court inter alia refused to countenance the respondent’s said Sales Manager’s evidence because that he was not yet employed by Daewoo at the time the order was made, even when it was undisputed that he was already in its employment when the goods were supplied by Daewoo to Kate Enterprises. In allowing Daewoo’s appeal, which was upheld by the apex court on further appeal by the Kate Enterprises, the apex court, per the leading judgment of D.O. Coker J.S.C. quoted with approval the judgment of Nnaemeka-Agu J.C.A., as he then was on the value of the evidence of the said PW1 thus:

“On appeal to the Court of Appeal, the judgment was set aside. Nnaemeka-Agu J.C.A. in his leading judgment, held that if the trial judge had borne in mind the facts adduced in evidence, both oral and documentary and given due weight to them, he would not have held that the plaintiff failed to prove its claim. He particularly considered the evidence of PW1 who, although was employed in 1979 and did not deal directly with the defendant, did not say he had no personal knowledge of the transaction in the normal course of his duty or that at the time of the contract he had not been employed. The learned Justice of appeal further observed that his evidence was that the goods arrived (admitted by DW1, the only defence witness) as indicated on Exhibits C-C4, between 12-1-79 and 10-5-79, a period when the witness was clearly in the service of the plaintiff. In coming to this decision the learned justice of appeal observed that the witness testified that he processed the Form M for the transaction, and finally the fact that the 1st P.W. did not deal with the defendant is not to comply that he had no knowledge of the transaction. He was of the view that “any manager or official of the company well placed to have personal knowledge of any particular transaction in which the company is engaged can give evidence of such transaction;” and that P.W.1 was in a position to know enough about the transaction as to be able to testify on behalf of the appellants. In the result, the appeal was allowed and judgment entered in favour of the plaintiff for the sum of N614,000.00 with interest and cost.”

(See also the contribution of Nnamani J.S.C. on the same point at p.28 LPELR 29.)

Thus the emphasis in Kate Enterprises was clearly the words ‘well placed to have personal knowledge of the transaction.’ In other words, a competent witness to testify for a company in respect of a transaction must be ‘well placed’ to have personal knowledge of it to do so.

In the other case of Marine Management Associates Inc. & Anor. v. National Maritime Authority (supra) the issue was that the trial judge discountenanced the evidence of the MD/CEO of the appellant’s two joint venture limited liability companies on the ground that their said MD/CEO in his testimony in proof of their claim against the defendant for damages for loss of credit and reputation as a result of the respondent’s breach of contract repeatedly used the pronouns ‘I’, ‘My’, ‘Me’ which the trial judge said could not be referring to the companies who are different from him in the eyes of the law and so they had abandoned their pleadings in the absence of any other evidence from them to support them. It is that decision the apex court disagreed and set aside following Kate Enterprises, with Galadima J.S.C. saying at p.48-49 that:

“As explained, PW1 is the managing Director of the 2nd cross-respondent and the joint venture of the cross-respondent. This being so he is not only ‘the directing mind and will of the cross-respondents therefore his use of the pronouns ‘I’, ‘My’ ‘Me’ in his evidence, understandably, was made on behalf of the cross-respondents.”

In Saleh v. Bank of the North, the issue was whether the appellant had liquidated his overdraft which he took from the respondent bank. The trial court dismissed the bank’s case even when its three witnesses, its staff, tendered the cheques the defendant issued as well as statements of accounts to prove his indebtedness, whereas the appellant failed to produce even the tellers he gave notice in his pleading that he would tender to show that he had liquidated the debt. The trial court basically founded its decision on the fact that the bank’s three witnesses were not around when the defendant opened its account and so they are not competent to testify on the defendant’s indebtedness. It is that course the apex court, per its lead judgment by Musdapher J.S.C. as he then was, again said the trial court was ‘clearly in error,’ following Kate Enterprises Ltd v. Daewoo (Nig.) Ltd.

In the instant case, the pertinent question is whether the internal auditor of the appellant bank Mr. Kosemani Temitayo who under cross-examination admitted (1) that he was not privy to the oral discussions between the DW4 and Messrs Eladiya Thompson and Goke Adubuola of the appellants as to the completion of the transfer forms in issue and (2) did not also witness their actual completion and (3) that he only screens documents which necessarily includes the said transfer forms, when they get to his table, is competent to say as he did in paragraph 26 of his witness statement that “All the transfer forms and instructions duly signed by claimant and by its managing director, Mr Abayomi Ajayi-Smith were not blank and that the information contained therein were supplied by the claimant.” That question can hardly be answered in the affirmative. In the first place, by the job designation of the appellant’s said witness Kosemani Temitayo – an internal auditor – it will be preposterous to suggest that a blank document will come to his table for screening or auditing; he can only reasonably screen a document when it is completed, as otherwise we shall be talking of the absurd and impossible scenario of an auditor auditing a blank document or what can be better described as nothing. An auditor is defined by the Online Free Dictionary as a person qualified to examine accounts and give reports. So, clearly, an auditor like DW2 cannot seriously say he audited a blank document. The transfer Forms must have been already signed before it got to DW2’s table for screening, after all he also agreed it is documents to be ‘processed’ that pass through his table for screening when he said:

“As an internal auditor, any document to be processed must pass through my table for screening. If that document comes to my table.”

And if that be the case, as it should naturally be, DW2 is not by any means in a position to say that it was the respondent’s Managing Director CW4 that completed the transfer forms that got to his ‘table’ completed, more so going by his admission in cross-examination that ‘My knowledge of what transpired in this transactions was based on the documents made available to me.’ In other words, DW2 Mr Temitayo was a witness who witnessed nothing useful on the issue he came to testify for. The Lower Court was therefore in my humble view on very strong ground when it held in its judgment that:

“The evidence of the DW2 on this point is weightless because he never testified that he was present when the forms were filled. This was more so that he admitted under cross examination that his knowledge of the transaction was based on documents i.e. exhibit 8. I was in no way impressed by the testimony of the DW2 that he was familiar with the writings of Messrs Adubuola and Eladiya. I believe that it was just a smokescreen to cover the failure of the defendant to call the duo as witness. His testimony on this issue carried little or no weight. Let me quickly state that the learned counsel to the defendant cited Ojo Vs. Gharoro (Supra) out of con in that the facts were not the same. In Ojo Vs. Gharoro (Supra), the 1st respondent whose testimony was being challenged on the basis of being hearsay was actually involved one way or the other in the whole clinical affair that resulted in the suit unlike in this case where the DW2 was not involved in the transaction at all but only relied on records.

“Having carefully compared the handwritings on the transfer forms, it was obvious that the DW2 could not have been telling the truth about the person who filled the forms. I believe the duty of the DW2 while in the box was to attempt to cover the trails left behind by Messrs Eladiya and Adubuola. I doubt much if he was able to make a success of the assignment.”

I shall only add that from my own perusal of the witness statement of the said Kosemani Temitayo, DW2, in p.55 – 60 as well as his testimony in Court on p. 348 of the same records, it does not even appear that this witness even said categorically that he was familiar with the signatures of Messrs Aduduola Goke and Eladiya Thompson Temitope, the appellant’s managers, even as he may presumably be familiar with their signatures going by his job schedule. That does not in any case absolve him from clearly testifying to that given the issues in this case.

Before I leave this issue, let me also observe that even the appellant’s pleading in paragraph 24 of its statement of defence adopted word for word by DW2 in para 26 of his witness statement supra where they averred that:

“All the transfer forms and instructions duly signed by claimant and by its managing director, Mr Abayomi Ajayi-Smith were not blank and that the information contained therein were supplied by the claimant”

does not even appear to me a straight and unequivocal assertion that the said Managing Director of the respondent completed the forms himself as contended by the appellant. The issue is not whether the said MD/CEO of the respondent ‘supplied’ the information therein contained. That he may have supplied such information – as opposed to personally completing the Forms with the information – is even impliedly admitted by the Managing Director of the respondent by his deposition in paragraph 22 of his witness statement where he said:

Since I reside in Ijebu-Ode, Ogun State – a considerable distance from Ado-Ekiti, I was advised by the defendant’s Ado-Ekiti Branch Manager and the Relationship Manager to sign and leave with them, on trust, blank undated funds Transfer Forms to facilitate a seamless and timely remittance of the price to the ship sellers in foreign exchange as soon as the Bank’s part was ready.

Such ‘seamless and timely transfer’ in his absence on the strength of ‘blank’ Forms can only be done on the basis of information already ‘supplied’ by him to complete them. The critical issue is whether the said forms were blank or not at the time the said Managing Director (DW4) of respondent signed and handed them over to the appellant’s two officers? That question, I am afraid, may not have been directly answered by the appellant and its only witness by their averments despite their belief that they did so. It is one thing to say I was supplied information (as averred by the appellant and deposed to by DW2) and quite another to say that the supplier of the information did not just leave blank forms for me to complete with the information, he actually went ahead to personally complete my Forms with the information he supplied me. This later bit is missing from the appellant’s defence and I do not think it can be left to assumption, especially when it is a central issue in the dispute.

In the final analysis, I also resolve this/these issue(s) against the appellant, even as I reiterate that the said issues and the pronouncements of the Lower Court which gave birth to them are merely surplusage and academic in the light of its finding that it was appellant’s Branch Manager Eladiya Thompson Temitope that completed the forms appellant used to transfer respondent’s funds to Gloriosa Co.

Issue 2 of appellant is whether the Lower Court was wrong when it held that the appellant improperly remitted the respondent’s equity contribution to Gloriosa Co.

Here learned counsel for appellant attacked the finding of the Lower Court that appellant improperly transferred the respondent’s funds to Gloriosa Company. He said the said finding was not supported by the pleadings and evidence before it. In argument, counsel first referred us to the Lower Court’s reasoning that since the appellant knew that the total money for the purchase of the ship was N190m and respondent was to contribute only 33%, totaling N64m, while the appellant was to contribute the bigger sum of 66% of which approval had not been given, due diligence should have dictated that its officials await the approval or inform the respondent after the expiration of the five days stipulation for transfer in Exhibit 17 (the Purchase Ship Agreement) before making the said transfer. The appellant is of the view that the Lower Court was wrong when it concluded from that reasoning that ‘what happened was clearly a breach of trust and a breach of the confidence reposed on the officials of the defendant by the claimant.’ Its counsel argued that being not a party to the said Ship Purchase Agreement (Exhibit 17) there was no way it could refrain from remitting the respondent’s deposit without making nonsense of its (respondent’s) transfer instructions. He cited Mohammed v. Mohammed (2012) 11 NWLR (PT1310) 1 @ 47-48 to say that “the appellant not being a party to Exhibit 17, it was not liable for any breach arising therefrom.” Counsel rather blamed the respondent, he says it ought to have waited for the appellant’s approval for its request for the credit facility before executing Exhibit 17; that in any case instead of terminating its instructions to appellant on the expiration of the five-days deadline for the payment the respondent proceeded to deposit $142,500.00 in its account, which counsel argued the appellant as ‘a reasonable banker’ understood the respondent to have made in pursuance of its transfer instructions. He said that the respondent ‘must blame itself for not taking the right step.’ Counsel attacked the Lower Court’s finding that Exhibit 17 made available to appellant’s Branch and Relationship Managers stated that the deposit once paid was non-refundable; he said that there was/is no such stipulation in Exhibit 17 and neither can any inference to that effect be drawn from it; that on the contrary Clause 2 of Exhibit 17 rather states that the deposit was to be held in trust by Gloriosa Co. for the respondent and the seller; that by its said finding the Lower Court made a case for the respondent which respondent did not make and so it exceeded its function as an umpire – citing INEC v. Atuma (2013) 11 NWLR (pt. 1366) p. 494 at 521. Counsel submitted that the instruction to transfer was complete and was not conditional upon approval of the loan by the appellant. Counsel then reproduced part of the provisions of Clause 13 of Exhibit 17 to submit that it did what a ‘reasonable, prudent and diligent’ banker would do, that is, transfer the deposit as instructed, adding that if it had not remitted the respondent’s equity contribution as instructed the ship sellers would have had a cause of action against the respondent pursuant to Clause 13 of the Ship Purchase Agreement and the respondent would be entitled to join the appellant as a third party. He cited Bank of Ireland v. Union Bank Ltd. (1998) 7 SCJN 385. Learned counsel argued that “a person must take reasonable care to avoid acts or omission which he can reasonably foresee would likely injure persons who are so closely and directly affected by his acts or omissions that he ought reasonably to have them in contemplation.” He cited Agbonmagbe Bank Ltd v. C.F.A.O. (1996) A.N.L.R. 140; Donoghue v. Stevenson (1932) A.C. 526 at 580 and Abusonmwan v. Mercantile Bank Ltd. No. 2 (1987) 3 NWLR (PT.60) 196 on this point and submitted that the respondent did not commit breach of any duty whether fiduciary or otherwise. He urged us to resolve the issue against the respondent.

Mr Asanga for the respondent in reply argued that the Lower Court was justified not only in its interpretation of Clause 13 of Exhibit 17 to the effect that any deposit for the ship was non-refundable but also in its finding that the respondent was negligent. Supporting the Lower Court’s finding that the deposit was non-refundable as per Exhibit 17, counsel referred us to the second paragraph of the same Clause 13 in issue which reads:

“Should the deposit not be paid as aforesaid, the Sellers shall have the right to cancel the contract, in which case the amount deposited together with interest earned, if any shall be forfeited to the sellers….’ and they shall be entitled to claim compensation for their losses and for all expenses incurred together with interest at the rate of 12% per annum.”

Counsel agreed that the question that requires an answer here is whether with the facts, evidence and circumstance of this case the appellant acted as a prudent and reasonable banker as claimed by its counsel in remitting respondent’s $142,500.00 to Gloriosa & Co. He said the appellant has attempted to falsely paint itself as a mere robotic agent of the respondent, obligated to obey the alleged instructions of the respondent irrespective of the surrounding circumstances. He argued that the duties of a banker go well beyond that of a mere custodian and bailee of the customer’s money; that the relationship is contractual and that of debtor and agent, built on trust and the bank owes its customer a duty of care. He cited Dr. H.L. Hart’s The Law of Banking; Haston (Nig) Ltd v. A.C.B. Plc (2002) 7 S.C. (Pt. 11) 54, per Ogundare, JSC @ P. 71 and Bank of the North Ltd v. Alhaji Bala Yau (2001) 6 SCM 1. Counsel argued that in the light of the un-rebutted, unchallenged and un-contradicted evidence in this case showing that the respondent placed absolute trust in the appellant’s Branch and Relationship Managers and accepted/acted upon their advice to sign transfer forms in blank and undated, the transaction between them assumed a fiduciary correlation which he said encompasses the idea of faith and confidence and creates the duties of loyalty and reasonable care of the assets of the respondent in appellant’s custody. He said the arguments canvassed by the appellant on this issue, especially its contention that if the ship seller had sued the respondent for failure to make the deposit the respondent could have joined it as a third party for its failure to remit the money suggest that the appellant, were motivated by a desire to save its own hide forgetting that even after frittering away respondent’s deposit the danger was not over in that the latter part of the same clause 13 of Exhibit 17 reserved the right for the seller, even after receiving the deposit, to claim further compensation for their losses and expenses together with interest at the rate of 12% per annum. He submitted that it was clear that the only panacea against liability for default on the buyer’s part was for the appellant to have fulfilled its own contribution to the purchase price so that the transaction could be consummated. This he said they did not do and thus caused the failure of the transaction. He argued that the facts of the case as pleaded in paragraphs 34-43 of the statement of claim and paragraphs 38-47 of the witness statement of CW4’s (respondent’s MD/CEO) with regards to the respondent’s concern with the tremendous economic benefit by way of bank charges that it stood to make from transferring the money revealed its selfish, deceptive and unethical disposition. Counsel urged us to resolve this issue too in respondent’s favour.

Resolution of issue

On this issue regarding the propriety of the appellant remitting the funds of the respondent deposited with it, the Lower Court first expressed its agreement with the contention of the respondent’s MD/CEO CW4 – which I totally agree with – by saying that:

“It was not in doubt that all the details of the seller of the ship were in the forms but that would not be conclusive evidence that the CW4 filled the forms. I agree with the CW4 that he only supplied them.”

Now, clause 13 of Exhibit 17 (the Agreement between the respondent and Katie Ltd, the sellers of the Ship) that relates to the deposit paid reads:

13. Buyers’ default

Should the deposit not be paid as aforesaid, the Sellers shall have the right to cancel the contract, and they shall be entitled to claim compensation for their losses and for all expenses incurred together with interest at the rate of 12% per annum.

Should the purchase money not be paid as aforesaid, the Sellers shall have the right to cancel this contract, in which case the amount deposited together with interest earned, if any shall be forfeited to the sellers. If the deposit does not cover the Seller’s losses, they shall be entitled to claim further compensation for their losses and for all expenses together with interest at the rate of 12% per annum.

Emphasis mine.

The issue here is whether having regards

(1) to the second paragraph of this clause which clearly makes the payment of any deposit for the ship non-refundable and or to be automatically forfeited to the sellers should the purchase price for the ship not be paid,

(2) Given the appellant’s officers’ knowledge that the respondent deposited its $142,500.00 upon its application and belief propelled by the assurances from the appellant’s said officers that the appellant’s board would approve a counterpart funding of 66% for the purchase of the ship and for respondent to fund only 33% of it, which approval for its 66% was still being awaited, and most likely even refused to its knowledge, at the time the appellant transferred its funds to Gloriosa Co. as deposit for the ship, and

(3) Given too that the five days stipulated in the respondent’s agreement with the ship sellers for payment of the deposit for which the said transfer was done by the appellant had to the undisputed knowledge of the appellant long passed,

was it proper for the appellant to transfer the respondent’s said funds without first informing respondent of its intention to do so or even stop the transfer outright? That question was answered decisively by the Lower Court against the appellant thus:

“Again, exhibit 5 showed that the funds were transferred between 16/1/08 and 29/1/08 long after the five days ultimatum given by the seller had expired. The officials of the defendant knew that the total cost of the purchase of the ship was one hundred and ninety nine million naira only (N190m) with the claimant contributing 33.3%, totaling sixty four million Naira only while the defendant was to contribute 66%. Without waiting to see if the defendant’s board would approve the transaction, the officials went ahead to remit the equity contribution of the claimant. Due diligence would have dictated that they await the approval of the board before the fund transfer. In the alternative, the officials should have stopped the transfer of funds after the expiration of five days stipulated in exhibit 17 or bring such to the attention of the CW4. What happened was clearly a breach of trust and a breach of the confidence reposed on the officials of the defendant by the claimant.

It was the claim of the CW4 that the defendant knew that the claimant had no alternative source of finance to complete the ship’s acquisition apart from the claimant’s equity contribution and the credit facility to be approved by the defendant’s board. This claim of the CW4 could not be faulted in view of the evidence before the court that the ship was to cost one hundred and ninety Million Naira only with the claimant providing equity contribution of 33.3% while the defendant was to provide the remaining 66%.

It was also clear from Exhibit 17 which was the memorandum of agreement that was made available to Messrs Olagoke Adubuola and Eladiya Thompson that once paid, the deposit was non-refundable. The defendant therefore knew that once paid, the deposit was non-refundable. It was also stated in Exhibit 17 that the 10% of the purchase money of the ship must be paid within five days of the execution of the memorandum of agreement. Exhibit 17 was executed on 9th January, 2008. It was the testimony of the CW4 that he discussed the terms of Exhibit 17 with Messrs Olagoke Adubuola and Eladiya Thompson especially the requirement of paying the deposit within 5 days thence in light of the fact that the Defendant was yet to disburse the facility. The answer of the DW2 was that defendant was not privy to the document and therefore not bound by same. The DW2 never stated that the document was not discussed with Messrs Adubuola and Eladiya. In view of the discussion relating to this transaction, there was no way the attention of Messrs Adubuola and Eladiya could not have been drawn to Exhibit 17. No banking institution worth its salt would want to commit its fund into a project involving such a huge sum of money without being let into the details of the transaction. I therefore believe that Exhibit 17 was discussed with Messrs Adubuola and Eladiya.

In spite of this, the officials of the defendant went on to transfer wholesale the equity contribution of the claimant to Gloriosa without waiting for the board’s approval and without taking into consideration the need to remit the 10% deposit within five days of the execution of the document. What was more, even if the officials of the defendant would continue to transfer the fund after the expiration of five days as contained in the Memorandum of agreement, they should have informed the CW4 of it before any further transfer. This they refused to do. The only inference that could be drawn was that the fund was transferred regardless of the consequence.”

“That the relationship between a banker and its customer gives rise to a duty of care cannot be doubted. It is also settled that a bank may incur liability if it commits a breach of its duty of care resulting in injury to its customer.”

Having so correctly stated the law on the subject, one is left bewildered by the appellant’s argument of being not a party to Exhibit 17 between the respondent and its ship supplier and so forth and so forth. What is important for the purposes of its relationship with the respondent is that it knew the terms of the contract (especially clause 13) between the respondent and the ship sellers upon which its officers approached it for credit facility and which it received respondent’s funds pending when its (appellant’s) board would give the necessary approval for credit facility for respondent to acquire the ship, and that imposes on it a duty of care and trust towards the respondent which it can only negligently perform or omit at its detriment. That is the point being made by Dr. Hart in The Law of Banking referred to by Mr Asanga for the respondent. Indeed another learned author, Professor K.I. Igweike put the position of the law beautifully in his book Law of Banking and Negotiable Instruments, 2nd Edition, at p. 86 when he posited that:

“A bank as a going concern undertakes numerous and highly professional services for its customer. It normally would act as agent for its customers in all circumstances where there is a relationship with third parties, such as the collection of cheques and bills, the payment of third party cheques or bills, the remitting of money abroad, the purchase of property or of stocks and shares, the effecting of insurance cover, etc. These services may sometimes extend beyond the traditional confines of banking into those that the banker has willingly undertaken to transact or held himself out to perform for a customer. Examples of these are the rendering of financial or investment advice, the giving of reference to customers and the keeping of customers’ valuables. In the performance of these services, the law sets and expects from a banker a minimum standard of conduct, care and skill. Where there is a short-fall from this standard, in the course of performing a service, the tort of negligence becomes relevant. Thus, a banker owes to his customer a further duty to execute these functions and services with a reasonable standard of professionalism. If the banker is found careless or wanting in dealing with the affairs of the customer, he is liable to the customer for breach of his contractual duty.”

Emphasis mine.

Lord Devlin had made this same point much earlier in the landmark case of Hedley Byrne & Co. Ltd v. Heller & Partners (1964) A.C. 465 thus:

“I do not understand any of your lordships to hold that it is a responsibility imposed by law upon certain types of persons or in certain sort of situations. It is a responsibility that is voluntarily accepted or undertaken either generally where a general relationship, such as that of the solicitor and client or banker and customer, is created, or specifically in relation to a particular transaction.”

Banks have been held as constructive trustees in circumstances wider than those of wrongfully obtaining by design or stipulation a benefit from a fund known to be affected by a trust; and constructive trust has been imposed upon a paying bank in circumstances where it has obtained no benefit for itself at all. A bank may be held liable even in respect of a payment it has made in accordance with its customer’s mandate.

The appellant here blatantly breached its onerous duties to the respondent for the reasons lucidly put in his judgment by the learned trial judge. Like him it also seems to me that the appellant in transferring respondent’s funds was motivated by selfish reasons of how much commission and other bank charges it could earn from the funds and I am not in any way persuaded by its afterthought that if it had not transferred the funds as it did the respondent could have brought a third party claim against it in case the ship seller sued the respondent for the unremitted money. I find that argument even laughable, because that ‘fear’, if the appellant was that concerned at all, could have been easily taken care of by drawing the respondent’s MD/CEO, CW4’s attention to the ultimatum. A mere phone call, or message of N4.00, would have been enough for that. In any case that ultimatum had even lapsed at the time the appellant transferred the funds in very quick succession to Gloriosa Co. I think, like the proverbial drowning man, the appellant is only trying to claw at straws with this excuse. It was in blatant breach of its duty of care and betrayed the respondent’s trust in the way, manner and circumstances it transferred respondent’s funds to Gloriosa Co. In the result I also resolve this issue against the appellant.

Issue 5 is whether the respondent proved its case to entitle it to the orders made by the Lower Court in its favour.

On this omnibus issue, the appellant’s counsel mainly repeated his arguments on the other issues. He argued, for instance, that generally, whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist, citing Section 131(1) Evidence Act. He pointed out that the respondent’s claim in the Lower Court was anchored on fraud, negligence and breach of trust, that the fraud (he left out negligence and breach of trust, and I hope it is not deliberate) was said to have been perpetrated by the respondent through Eladiya Thompson and Adubuola Olagoke, the erstwhile Relationship Manager and Branch Manager respectively, of the appellant; that the burden of proving that any person has been guilty of a crime or wrongful act is on the party who asserts it, whether the commission of such act is or is not directly in issue in the action; that the respondent failed utterly to prove their allegation of fraud in the transaction that led to this case; that the appellant’s duties as a debtor to and an agent of the respondent do not, and cannot by their combination constitute the appellant into the respondent’s “trustee” or adviser”; that the Lower Court took the view that the relationship between the appellant and the respondent was one of trust, which is why it held at page 371 of the record that the action of the appellant in remitting the respondent’s equity contribution “was clearly a breach of trust and a breach of the confidence reposed on the officials of the defendant by the claimant,” which view he contends cannot be justified. Counsel for once admitted that the fact that the relationship between a banker and its customer gives rise to a duty of care cannot be doubted. He agreed it is also settled that a bank may incur liability if it commits a breach of its duty of care resulting in injury to its customer, for which he cited Diamond Bank Plc v. Monanu (2012) 4 BFLR 84 AT 102 Lines 10-35. Counsel said he was adopting and repeating his client’s contention, which I have dismissed, that it was the respondent’s MD/CEO that completed the transfer forms with which it transferred the respondent’s funds to Gloriosa Co., and finally submitted that ‘in transferring the respondent’s equity contribution to Glorisa Co. it was by all means right, proper, reasonable and in good faith’ and that respondent failed to prove the essential elements of its case, namely, fraud, negligence and breach of trust and so it was not entitled to the orders made by the Lower Court.

In response, Mr Asanga for the respondent argued that in our civil jurisprudence cases are proved on the preponderance of evidence; that the respondent gave direct, credible and consistent evidence on every aspect of its claim and tendered documentary evidence where appropriate; that the evidence of CW4 complied completely with the provisions of Sections 126 and 134 of the Evidence Act, 2012; that despite the superior evidence of CW4, the Appellant chose to withhold the evidence of material witnesses available to it and instead presented the hearsay evidence of its star witness DW2 who admitted under cross-examination that the Branch Manager Adegoke Adubuola and the Relationship Manager Eladiya Thompson Temitope were the people who had direct access and interaction with the customers and that he, in his role as internal auditor, owed his knowledge of what transpired in this transaction solely to the documents made available to him; that feeble attempt was made by the appellant in its brief of argument to cloak the DW2 as though he played a part in the transactions leading to this suit and that was done by juxtaposing paragraphs 1 and 2 of his sworn deposition with his evidence under cross examination where he said “As an internal auditor, any document to be processed must pass through my table for screening”. Learned Counsel in making the above quotation deliberately left out the next sentence which qualified it, namely “If that document comes to my table,” he observed. Counsel urged us to find and hold that in the circumstances, the respondent proved its case to entitle it to the orders made by the Lower Court.

Resolution of issue

The arguments of the appellant on this omnibus ground is a rehash of issues that I have earlier considered in the course of this judgment and resolved against it. I do not intend to repeat myself: I adopt all the said conclusions I have reached earlier on and hereby resolve this issue too against the appellant. I hold that the respondent proved its case against the appellant and was entitled to all the orders the Lower Court made in its favour.

In the final analysis, this appeal fails in its entirety and the judgment of the Lower Court is affirmed.

There shall be costs of the appeal which I assess at N60,000.00 against the appellants.

ADZIRA GANA MSHELIA, J.C.A.: I agree with the reasoning and conclusion reached in the lead judgment of my learned brother Ugo, J.C.A., just delivered. I too dismiss the appeal with N60,000.00 costs in favour of the respondent.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead judgment prepared by my learned brother Ugo, JCA. In my considered view, the issues for the determination of the appeal have been exhaustively and extensively considered in the lead judgment and I am in agreement with the resolution of same. I do not have anything worthwhile to add by way of contribution to the said judgment.

In conclusion, I too find the instant appeal to fail in its entirety. It is hereby dismissed while the judgment of the Lower Court is affirmed. I also abide by the order relating to costs as made in the lead judgment.

Appearances

Samuel Oyadoyin Esq.For Appellant

AND

Ime Nya Asanga Esq. (with him T. O. Obisesan, Esq. and Miss B. E. Mene)