AFRIBANK NIGERIA PLC v. HOMELUX CONSTRUCTION COMPANY LIMITED & ANOR
(2008)LCN/2671(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of February, 2008
CA/A/74/06
RATIO
PRACTICE AND PROCEDURE – JOINT CAUSE OF ACTION: WHETHER WHERE THERE IS A JOINT CAUSE OF ACTION AGAINST TWO OR MORE PERSONS, A DISCHARGE AGAINST ONE PERSON OPERATES AS A DISCHARGE OF ALL OTHERS
“Generally, where there is a joint cause of action against two or more person, a discharge as against one of them operates as a discharge of all because the cause of action is one, once it is discharged all persons otherwise liable are consequently released. See Kadzi International Ltd v. Kano Tannery Co. Ltd (2004) 4 NWLR (pt.864) 545; Ihunde v. Samson Roger Nig. Ltd. (2000) FWLR 2782. The view above was apply described by Salami JCA in See Kadzi International Ltd v. Kano Tannery Co. Ltd (supra) at 160 – 161 in the following words:- “I also agree with the learned counsel for the first and second respondents that, learned trial Judge with respect, cannot approbate and reprobate. He is not entitled, in the circumstance of the suit, in which the parties are sued jointly, for find that he has no jurisdiction to try the claim in respect of one of the parties and then turn around to say he is competent to entertain the same suit in respect of the second person”. Smith L.J. in Duck v. Mayer (1899) 2 QB 511 at 513 stated: “It is, we think, clear law that a release granted to one joint debtor, operates as a discharge of the other joint tortfeasor, or the other joint debtor the reason being that the cause of action which is one and indivisible, having been realeased, all persons otherwise liable thereto consequently released”. PER MARY U. PETER-ODILI, J.C.A.
PRACTICE AND PROCEDURE – BRIEF WRITING: WHETHER A COUNSEL CAN HIDE UNDER HIS BRIEF TO INTRODUCE FACTS
“The law is trite that counsel cannot hide under the forum of brief to introduce facts which do not linder Nigeria’s adversary system of adjudication belong to him. Counsel qua advocate is an expert of the law and the facts of the case belong to his client. See Anaekwe v. Cop (1996) 3 NWLR (pt. 436) 320.”PER MARY U. PETER-ODILI, J.C.A
BANKING – REVOCATION OF BANKING LICENCE: WHETHER THE REVOCATION OF A BANKING LICENCE CONSTITUTE THE DEATH OF THE BANK
“Revocation of a banking licence by the Governor of the Central Bank does not necessarily renew of the bank thereby making it incapable of suing or being sued or barring it from becoming an appellant or respondent in an appeal process. The revocation of the licence of a bank could have indicated an ill-disposition, all acute and serious ailment. It does not go beyond that to herald and constitute the death of the bank. The bank remains alive possessing it, legal personality, as sick as it could have been and as indicated by the revocation of its licence. See CCB (Nig.) Plc. v. O’Silvawax Int. Ltd. (1999) 7 NWLR (pt. 609) 97 at 103; Nzom v. Jinadu (1987) 1 NWLR (pt. 51) 533; Opebiyi v. Oshoboja (1976) 9 & 10 SC 195.” PER MARY U. PETER-ODILI, J.C.A
COURT – DECISION OF COURT:WHETHER A COURT CAN DECIDE ISSUES BASED ON SPECULATION
“A court cannot decide issue on speculation no matter how close what it relies on may seem to be to the facts. Speculation is not an aspect of inference that maybe drawn from facts that are laid before the court. Inference is reasonable from acts whereas speculation is a mere variant of imaginative guess which, even when it appears plausible never be allowed by a court of law to fill any hiatus in the evidence before it. Ivenagbor v. Bazuaye (1999) 6 SCNJ 235 per Uwaifo JSC; Ogunoneze v. State (1998) 5 NWLR (Pt.551) 521 at 55.”PER MARY U. PETER-ODILI, J.C.A
JUSTICES:
RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria
MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
Between
AFRIBANK NIGERIA PLC – Appellant(s)
AND
1. HOMELUX CONSTRUCTION COMPANY LIMITED
2. CHIEF IGNATIUS NWOSU – Respondent(s)
MARY U. PETER-ODILI, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the ruling and judgment of Honoureable justice Sylvanus Oriji of the Federal Capital Territory High Court both delivered on the 24th of January 2006.
The claim of the plaintiffs as per paragraph 30 of the Amended Statement of claim dated 13th November, 2004 is as follows:-
“The Plaintiffs jointly and severally claim against the defendants jointly and severally the sum of Three Million Naira (N3,000,000.00) Nigeria Currency being the proceeds or value of the Dishonoured/Returned unpaid AFRICAN INTERNATIONAL BANK LIMITED ABUJA CHEQUE NUMBER 00000476 drawn by the second Defendant and made payable to the second Plaintiff and/or paid into the first Plaintiff’s Account No.0360006689 with the first defendant, but returned unpaid for the reason of Drawer’s Confirmation Required (DCR) and which for the First Defendant’s breach of its duty of care to the plaintiff’s negligence and violation of the provisions of the BILL OF EXCHANGE ACT CAP 35 OF THE LAWS OF THE FEDERATION OF NIGERIA 1990, the First Defendant failed or refused to notify the plaintiffs, of the Dishonoured/Returned unpaid Cheque within a reasonable time and thereby caused the plaintiffs loss of the proceeds or value of the said cheques, the Drawee bank having closed its doors to its customers since about the month of August, 2003.
ALTERNATIVELY
The Plaintiff jointly and severally claim against the first Defendant the sum of Three Million Naira (N3,000,000.00) as special damage for the loss of the value of the Dishonoured/Returned unpaid AFRICAN INTERNATIONAL BANK LIMITED ABUJA CHEQUE NUMBER 00000476 endorsed, delivered and paid into the first plaintiff account NO.0360006689 with the First Defendant, but returned unpaid, for the reason of Drawer’s Confirmation Required (DCR) and which for the first Defendant’s breach of its duty of care to diligently manage the First Plaintiff’s aforesaid account, negligence and violation of the Provisions of the BILL OF EXCHANGE ACT CAP 35 OF THE LAWS OF THER FEDERATION OF NIGERIA 1990 in failing or refusing to notify the first plaintiff of the Dishonour/Return of the said cheques within a reasonable time caused the First Plaintiffs loss of the value or proceed of the said cheques, the Drawee Bank having closed its door to its customers and other bearers and holders of the Bills of Exchange since about the month of August, 2003.
SUMMARY OF FACTS
Sometime in march 2003, the 2nd Plaintiff (at the trial court) was given an African International bank cheques by the 2nd Defendant in the sum of N3,000,000.00 as rent collected on his behalf by the 2nd Defendant on property managed by the 2nd Defendant.
The 2nd Plaintiff endorsed the cheques to the 1st Plaintiff who paid it into 1st plaintiff’s account with the 1st Defendant. The 1st Defendant presented the cheques for cleaning at Central bank of Nigeria (CBN) on behalf of the 1st Plaintiff.
The cheques was returned uncleared for the reason of “Drawers Confirmation Required” and the 1st Defendant sent a notification debit note and a copy of the cheques to the plaintiff through its post office box number supplied when the account was opened.
Sometime in November 2003, the 1st plaintiff acting through the 2nd Plaintiff approached the 1st Defendant and complained that the sum of N3,000.000.00 did not reflect in his account. The 1st Defendant informed him that the cheques was returned unpaid with an inscription “DCR”. The original cheques was also returned to him as that stage.
The 2nd plaintiff alleged that he confronted the 2nd Defendant with it and the 2nd Defendant stated he would have confirmed the cheques if only it was brought to him on time but that the bank AIB had closed its doors to its customers.
The 1st and 2nd Plaintiff took out a writ against the 1st and 2nd Defendant dated 16th June, 2004 and also amended the writ and statement of claim dated 18th November, 2004.
The 1st Defendant brought an objection dated 18th January, 2006 asking for the striking out of the Plaintiff’s case against the 1st Defendant as there was no cause of action against it.
The court ruled dismissing the application and stated that the more fact that the 2nd Defendant’s bank shall still exists does not mean they will pay the Three Million Naira N3,000.000.00 in their custody to the plaintiffs.
The court subsequently gave judgment holding that the 1st Defendant is liable to pay the sum of Three Million to the plaintiff and the 2nd Defendant not liable for any sum. Dissatisfied with the ruling and judgment of 24th January, 2006 the 1st Defendant as Appellant filed a Notice of Appeal dated 2nd February, 2006 and another amended one dated 14th March, 2006 on which this appeal is based on 6 grounds.
The Appellant by a Brief of Argument filed on 21/6/06 raised four issues which are:-
1. Whether having shown that 2nd Defendant’s bank, African International bank Limited (AIB) is in existence, the trial court should not have declined jurisdiction on the ground that there was no causes of action against the 1st Defendant.
2. Whether the 1st Defendant did not adduce enough evidence to prove that the plaintiffs were notified of the return of the cheques.
3. Whether in this action brought jointly and severally, against two Defendants the court may find 1st Defendant liable and the 2nd not liable.
4. Whether the provision of Section 48 of the Bills of Exchange Act discharges a drawer without notice when he has across to the sum allegedly lost.
The Respondents through their Brief of argument adopted the questions paid by the Appellant’s Brief. The Respondent’s Brief was filed on 9/11/06 and deemed filed on 17/4/07.
The appellant filed a reply brief on 13/11/06.
I must say that the appellant’s counsel did a very poor job of the drafting of the Appellant’s brief as it was difficult to know if the matter was on appeal or in the High Court. Since substantial justice is the focus I have had to wade through the confusion created by the appellant in finding out which party is referred to as the appellant throughout the brief, made references to plaintiff and defendants without clearly showing the nexus between the parties at the lower court and the ones on appeal.
ISSUE ONE
WHETHER HAVING SHOWN THAT 2ND DEFENDANT’S BANK, AFRICA INTERNATIONAL BANK LIMITED (AIB) IS IN EXISTENCE, THE TRIAL COURT SHOULD NOT HAVE DECLINED JURISDICTION ON THE GROUND THAT THERE WAS NO CAUSE OF ACTION AGAINST THE 1ST DEFENDANT.
Learned counsel for the Appellant, Mr. Bakre stated that the 1st Defendant/Applicant/ Appellant in the application dated 18th January, 2006 but heard on the 24th January, 2006, argued that the central Bank being the regulatory authority of Commercial Banks in Nigeria; had stated by virtue of exhibit A attached to the affidavit in support of the application, that AIB,the 2nd Defendant’s bank is in operation and has merged with the Diamond Bank group to form a bigger bank and that there was no cause of action. Mr Bakre said the issue of cause of action is an issue of jurisdiction and a trial court could not exercise jurisdiction where there is no cause or action. He cited Madukolu v. Nkemdilim (2001) 46 WRN 1; Falomo v. Kitchener (2005) 34 WRN 144 at 182.
Learned counsel for the Appellant said there was a cause of action and the section 48 of the Bills of exchange Act has discharged the 2nd Defendant because he had no notice of the dishonoured cheques and it was the 1st Respondent who owed a duty of care to the Plaintiff/Appellant and having breached that duty the plaintiff/Appellant is entitled to be compensated.
Mr. Bakre further stated that in the ruling the Lower Court stated that 2nd Defendant (AIB) has always been in existence and that they are only not paying the customers. Learned counsel said that the effect of the acknowledgement of that fact is that the court agreed that there was no cause of action against the 1st Defendant/Appellant but against the 2nd Defendant and in whose custody the sum is alleged to be. That therefore the Defendant/Appellant has not sued the proper party which is AIB still in existence and thus there was no cause of action against the 1st respondent (1st defendant in the court).
Learned counsel for the Appellant submitted further that if the claim of the Plaintiff/Appellant had been for damages for the loss occasioned by their inability to access the N3,000.00.00 during the period they could not access it and the period the money eventually was paid to them, then there could be liability against the 1st Respondent if it was properly found to have been negligent. That the evidence before the court could only support loss of the use of the sum for the period that the sum was not available to the respondent and not that there had been a total loss of the money claimed.
Learned counsel for the Appellant said the basis upon which the trial Judge came to the conclusion that the 1st defendant/Appellant was liable was totally misconceived and that the decision of the lower court should be reversed since the trial court had no jurisdiction to try the matter as it did not disclose a cause of action against the other party.
In response, learned counsel for the Respondents contended that as at the application which raised the objection parties had closed their respective cases and that date 24/1/06 was originally set aside for parties to adopt their written addresses. That the issue of the existence or otherwise of Exhibit ‘A’ was neither pleaded nor given in evidence throughout the entire proceedings. that the Appellant sought to introduce this new set of facts as contained in Exhibit “A” without amending its pleadings and so this court should not rely on the facts contained therein. That the court should reject the evidence. he further stated that the issues were never joined in the pleadings as to whether or not AIB had merged with Diamond Bank Group and this fact was relevant in determining the court’s jurisdiction. That since parties are bound by their pleadings and evidence on unpleaded facts go to no issue. He cited Bamgboye v. University of Ilorin (1999) 6 SCNJ 295; Odogwu v. Odogwu (1990) 4 NWLR (pt.143) 224 at 234.
Learned counsel said since the issue of merger and loss of Three Million Naira or whether kept in the 2nd Defendant’s account with the bank were neither pleaded nor supported by evidence in the lower court, those same issues cannot properly arise here on appeal for determination without leave of either the trial court or the court of Appeal. He cited Ogiorio v. Igbinovia (1998) 13 NWLR (Pt.582) 426 at 434.
On the definition of cause of action learned counsel for the Respondent cited Labode v. Otubu (2001) 3 SCNJ 1 at 25; Attorney- General Federation v. Attorney-General Abia State & Ors (2001) 7 SCNJ 1 at 32.
He stated on that in determining whether the plaintiff action disclose any cause of action or the nature thereof, the court will necessarily restrict itself to the plaintiff’s statement of claim without recourse to the Defendant’s Statement of Defence. He referred to 7 UP Bottling Co. Ltd v. Abiola (2001) 6 SCNJ 18; Akilu v. Fawehinmi No.2 (1989) 2 NWLR (pt.102) 122; Union Bank of Nigeria Ltd v. Oki (1999) 8 NWLR (pt.631) 244.
Mr. Agbelahor for the Respondent stated on that in their pleadings as plaintiff they had averred that the Appellant as 1st Defendant and as the banker of the 1st Respondent neglected to give notice of dishonour of AIB cheques for N3 Million which was returned to it on 13/3/03. That the Respondent had further averred that they had suffered loss of the value of the cheques since the cheques was rejected as at 18/11/03 when the Respondent discovered the dishonour and AIB had closed its doors to its customers. That those averments had passed the test of cause of action as enunciated in Gbadamosi v. Taiwo (2004) 43 WRN 51. He stated on that as to when the cause of action accrued this court is to look at the writ of summons or the statement of claim and not the statement to defence. He referred to Agric Dev. Corp. v. Okedi (2004) 11 NWLR (Pt.884) 369 at 386.
Learned counsel for the Respondent said that it is the law applicable at the time of the cause of action arose that determines whether a cause of action had been disclosed by the action and not the law after the cause of action had arisen and the suit filed. That the Respondents never canvassed the facts that AIB was dead or liquidated. That AIB had always been in existence as the Central Bank of Nigeria did not revoke the licence. That their case had always been that the AIB was not paying money to its customers and the appellant had failed to show that the AIB had opened its doors to its customers and is paying money to customers. He said if the averments in Respondents pleadings are taken as a whole the Respondents had suffered loss.
Mr. Agbolahor went on to state that the relevant period in determining cause of action is the period when the cause of action arose. That facts which arose after the filing of the Writ of Summons and Statement of Claim are not considered in determining whether a cause of action exist or otherwise. That just as the Appellant as plaintiff cannot be allowed to bring to his case an entirely fresh cause of action which arose after the action had started, a defendant will not also be allowed to raise new facts which arose after the issuance of the writ to raise objection to the court’s jurisdiction as the suit took off on the date of the issuance of the writ. He cited Gowon v. Ike-Okongwu (2003) 6 NWLR (pt.815) 38 at 49; I.M.N.L v. Tewose (2004) 11 NWLR (pt.884) 272 at 287.
He said the assertion of the Appellant that AIB had been bought over by Diamond Bank was never in evidence at the Lower Court and the Address of Counsel cannot take the place of evidence.
He cited Mains Ventures Ltd v. Petroplast Ind. Ltd (2000) 4 NWLR (pt. 651) 151.
He urged the court to hold that the lower court had jurisdiction to try the matter as the Respondents’ case was based on the Appellant’s negligence and in contravention of the BILLS OF EXCHANGE ACT particularly Section 48.
In reply on points of law learned counsel for the Appellant said that even if the CBN had withdrawn the licence of AIB, they could still have been sued unless they are wound up. He cited CCB Nig. Plc v. Q’Silrawas Int. Ltd (1999) 7 NWLR (pt.609) 97.
Mr. Bakre for the Appellant said it has been shown that there was no loss and so there cannot be a cause of action, Therefore the basis upon which a litigant approaches the court is that there has been a wrong to him by the Defendant now the Appellant which has led to the loss. He cited Gbadamosi v. Taiwo (2004) 43 WRN 51; UBA v. BTL (2004) 7 NWLR (pt.904). That in this case the Respondent having admitted that the money in question was in the 2nd Defendant’s account with the AIB there was then no loss or a cause of action. That the statement of claim brought a claim which is not sustainable, unarguable and bad, it is said to disclose no cause of action. He cited the following cases: Haruna v. Kogi State (HOA) (2005) 6 WRN 121; NICON Insurance v. Olowofuyeku (2005) 14 WRN 128 at 139.
A cause of action is an act on the part of the defendant which gives the plaintiff his cause of complaint. Stated in another way, a cause of action is the fact or combination of facts which gives rise to a right to sue and it consist of two elements:-
(a) the wrongful act of the defendant which the plaintiff has cause of complaint, and
(b) the consequent damage. See UBA Plc v. BTL Ind. Ltd (2004) 18 NWLR (pt.904) 180 at 227; Adimora v. Ajufo (1983) 3 NWLR (pt.30) 1; Thomas v. Olufosoye (1986) 1 NWLR (pt.18) 669.
Onalaja JCA had attempted a definition of “cause of action” when he said:
”Jurists have found it difficult to give a proper definition, to a cause of action. A cause of action is a group of operative facts giving rise to one or more bases for suing, a factual situation that entitles one person to obtain a remedy in court from another person. It may be defined generally to be a situation or state of facts that entitles a party to maintain an action in a Judicial Tribunal. The State of facts may be:-
(a) a primary right of the plaintiff actually violated by the defendant; or
(b) the threatened violation of such right, which violation the plaintiff is entitled to restrain or protect as in case for actions or suits for injunctions; or
A cause of action consists of the bundle or aggregation of facts or circumstance in a relationship between the parties which enables a plaintiff to make a claim against the defendant; and such facts can be garnered only from the plaintiff’s writ of summons, particulars of claim or statement of claim and not from the statement of defence”.
See Kadzi Int’l v. Kano Tennery Co. Ltd (2004) 4 NWLR (Pt.864) 545; Fadare v. Attorney-General Oyo State (1982) 4 SC 1; Thomas v. Olufosoye (1986) 1 NWLR (pt.18) 669; Amao v. Attorney-General Northen Central State (1973) NNLR 118; Adeyemi v. Opeyori (1976) 1 FNR 149; Anya v. Iyayi (1993) 7 NWLR (pt.305) 290; Savage v. Uwaechia (1972) 3 SC 213.
A party praying the court to strike out the case of the plaintiff must show that the plaintiff’s writ of summons and statement of claim are incurably defective and that they do not disclose any cause of action and consequently the claim of the plaintiff cannot in any event succeed. See Akilu v. Fawehinmi No.2 (1900) 2 NWLR (pt.102) 122 at 172; Foko v. Foko (1968) NMLR 441; Fashanu v. Governor, Western Region (1955) – 56) WRNLR 138; Labode v. Otubo (2001) 3 SCNJ 1 at 21 per Uwais CJN.
The appellants action cannot be considered to be an abuse of the process of court since the statement of claim has, as shown, disclosed a reasonable cause of action against the respondents.
The fact that the cause of action is weak or not likely to succeed is no ground to strike out. See Attorney-General Federation v. Attorney-Generals of all the States (2001) 7 SCNJ 1 at 32. Moore v. Lawson 33 T.L.R. 418; Wenlock v. Moloney (1965) WLR 1238; Irene Thomas v. Olufosoye (1986) 1 NWLR (pt.18) 669.
It seems what the appellant/Applicant is calling on the court to do when they raised the preliminary objection citing a lack of a cause of action is to terminate in limine a suit with a reason that could easily be speculative and exploratory and not based on law or substantiated. It is without doubt the writ of summons and Statement of Claim of a plaintiff that determines whether a cause of action arose or not. Having considered the statement of Claim in this instance I do not see upon what ground the application to strike out the suit was made. This is so because the content of the State of Claim was sufficient to approach the court and it is then left for the court to decide on which side the justice of the dispute lay. That is not the role of counsel. Also to be pointed out is that counsel’s address is not substitute for evidence. See mains Ventures Ltd v. Petroplast Ind. Ltd (2000) 4 NWLR (pt.651) 151 at 166; Niger Construction Ltd v. Okugbeni (1987) 4 NWLR (pt.67) 787.
The application definitely lacked merit and the court below was right in dismissing it. I hold that the Lower Court jurisdiction and there was a cause of action to be determined. The issue is answered in favour of the Respondents.
ISSUE TWO
WHETHER THE 1ST DEFENDANT/APPELLANT DID NOT ADDUCE ENOUGH EVIDENCE TO PROVE THAT THE RESPONDENT WAS NOTIFIED OF THE RETURN OF HE CHEQUE.
Learned counsel for the Appellant referred to the evidence at the court below showing all the steps they had taken and they were without fault. That the learned trial judge had relied on a pleading that had been amended which occasioned a miscarriage of justice against the appellant. that it is the position of the law that amendment dates back to the day of the original process and the old process thus goes into extinction. He cited Voican v. Geselischaft (2001) 26 WRN 27.
Learned counsel further stated that the best testimony that PW1 could have in the court below was that they did not receive the allegedly posted documents and not that they were not posted. That by virtue of section 137(2) of the Evidence Act Cap 112 Laws of the Federation 1990 the burden of proof in civil cases is not static but shifts. He cited Adetoro v. Ogo-Oluwa (20002) 9 WRN 149.
Mr. Bakre for the Appellant said that after stating that the document was posted and that it is the procedure in the Bank to pos such documents, the burden of contradicting such evidence lies on the Respondent and could not have been discharged merely by Respondents stating was not within his knowledge, He cited Mogaji v. Odofin (1973) 4 SC 91 – 98.
That in this instance, if the testimony of both parties are placed on an imaginary scale, it cannot possibly tilt in favour if a witness who was not present when the act was allegedly done.
Learned counsel for the Respondents in response said that the Appellant had failed to show how, when and whether the debit note and photocopy of the dishonoured cheques were actually posted to the 1st Respondent and that the Appellant could not take advantage of the provisions of Section 49(0) of the Bills of Exchange Act in the absence of failing to establish the fact of posting. That the bare assertion by DW2 that he posted a debit note copy of the dishonoured cheque, was not supported by any evidence. He said even though the Appellant has in paragraph 8 and 9 of its amended statement of defence pleaded that it posted the debit note and photocopy of the cheques it led no evidence in proof of its averment. That it is settled law that where a party has alleged the existence of a fact, the onus is on him to show the existence thereof. He cited Okubule v. Oyagbola (1990) 4 NWLR (pt.147) 723; Sections 136 and 137 of the Evidence Act.
Mr. Agbolahor stated on that it is trite law that averments in a pleading do not constitute evidence or proof and where no evidence is adduced in support of pleadings, the facts are deemed abandoned. He referred to Lawson v. Afani Continental Co. Ltd. (2002) 2 NWLR (pt.752) 585; Adekintere v. Rock View Hotel Ltd (2004) 1 NWLR (pt.853) 161; Akano v. First Bank Nig. Plc. (2004) 8 NWLR (pt.875) 318; IBWA v. Imano Ltd. (2001) 3 SCNJ 160 at 183.
He went on to contend that the testimony of the 1st Respondent concerning returned cheques previously and what happened in the instant case were not challenged or contested by the Appellant and so should be deemed admitted. He cited bank of the North v. Aliyu (1999) 7 (Pt.612) 622; Omo v. Judicial Service Commission Delta State (2000) 7 SCNJ 17.
Also counsel for the Respondents said it is settled law that parties are bound by their pleadings and that once a pleading is amended, the original pleading no longer has any effect in the proceedings. He cited Salami v. Oke (1987) 10 SCNJ 27; Oyinloye v. Esinkin (1999) 6 SCNJ 278 at 290.
Mr. Agbolahor went on to say that the appellant did not discharge the burden placed on it to show that the documents were really posted. That the mere oral testimony of the DW2 that the documents were posted and that it is the procedure in banking to post such document does not discharge the appellant’s burden of proving that they were posted when there are no other evidence to establish the fact postage. He referred to section 137 (2) of the Evidence Act; Anekwe v. Cop (1996) 3 NWLR (pt.436) 320 at 332; Daggash v. Bulama (2004) 14 NWLR (pt.892) 144 at 228, Katto v. CBN (1991) 12 SCNJ 15.
In reply on points of law, learned Counsel for the Appellant said in determining a dispute the relevant factor is the quality of evidence adduced. He cited Oguonzee v. State (1998) 5 NWLR (pt. 551) 521.
The Appellant through counsel had contended strenuously that they established the notice of the dishonour of the cheques within a reasonable time to the Respondents. This, the Respondents dispute saying the averments in the Statement of defence were not proof if the evidence did not give body to the pleading.
It is trite law that pleadings cannot constitute and is not tantamount to evidence and a defendant who does not give evidence in support of his pleadings or in challenge of the evidence of the plaintiff, as the appellant did in the present case, is deemed to have accepted the facts in dispute as adduced in evidence by the plaintiff, notwithstanding the general traverse in his pleadings. I.B.W.A. v. Imano Ltd. (2001) 3 SCNJ 160.
The effect of failure to lead evidence in support of averment in a pleading is that such averment is deemed to have been abandoned. See UBN Plc v. Sparking (2000) 15 NWLR (pt.639) 200 at 214; Nwogo v. Njoku (1990) 3 NWLR (pt.140) 570, Bala v. Bankole (1986) 3 NWLR (pt.27) 141.
Where a collecting bank has failed in its duly to give due notice of dishonour of a cheque delivered to it merely for collection to its customer within a reasonable time and the customer has suffered prejudice, the customer’s action lies in damages for negligence. See Bank of the North Ltd. v. Yau (2001) FWLR (pt.54) 280.
Section 50 (2) of the Bill of Exchange Act provides that notice of dishonour of a bill is dispensed with by express or implied waiver Notice of dishonour may be waived before the time of giving notice had arrived, or after the omission to give due notice.
Bank of the North Ltd. v. Yau (2001) FWLR (pt.54) 280 at 297.
It is not a matter of assumption at all whether or not a bank is a holder for value. The fact must be averred and proved. As a rule of pleadings where a bank claims on a bill, a statement of claim must allege the right in which the bank claims on the bill, that is, whether as payee, holder or endorsee and whether as holder in course or holder for value. Bank of the North Ltd. v. Yau (2001) FWLR (pt.54) 280 at 312.
In Bank of the North Ltd. v. Yau (2001) FWLR (pt.54) it was held as follows:-
1. By Section 47 of the Bills of Exchange Act, a bill is dishonoured by non-payment of the value of money stipulated thereon. P.296.
2. Section 48 of the Bills of Exchange Act stated that notice of dishonour must be given to the drawer and each endorser of the bill. Failure to do so, the right of a holder is due course subsequent to the omission shall not be prejudiced by the omission.
3. Section 49(1) stipulates that notice of dishonour of the bill must be given within a reasonable time thereafter. Time is of the utmost importance in relation to giving notice of dishonour what constitutes reasonable time is a question of fact dependent upon the circumstances of the case.
4. By Section 49 of the Bills of Exchange Act. where a bill when dishonoured is in the hands of an agent (or a banker) he may either give notice to his principal, and if he gives notice to his principal, he must do so within the same time as if he were the holder, and the principal upon receipt of such notice has himself the same time for giving notice as if the agent had been an independent holder.
The notice may be given as soon as the bill is dishonoured and must be given within a reasonable time thereafter.
It is true that the Appellant as defendant pleaded the matter of giving adequate notice to the customer in this case the Respondents as to the dishonour of the cheques within a reasonable time.
However the Appellant was clearly unable to establish that they performed that duty accordingly and so cannot erase the standing fad that a cheque presented and received 12/3/03 and returned on 13/3/03 the knowledge did not get to the Respondent until about 12/11/03. I see nothing to persuade me from this finding and evaluation of the learned trial judge.
The law is trite that counsel cannot hide under the forum of brief to introduce facts which do not linder Nigeria’s adversary system of adjudication belong to him. Counsel qua advocate is an expert of the law and the facts of the case belong to his client. See Anaekwe v. Cop (1996) 3 NWLR (pt. 436) 320.
It is therefore on that note that I find this issue against the appellant and answer in the negative and that is that the Respondents was not notified of the cheques return.
ISSUE THREE
WHETHER IN THIS ACTION BROUGHT JOINTLY AND SEVERALLY AGAINST TWO DEFENDANTS, THE COURT MAY FIND ONE DEFENDANT LIABLE AND THE OTHER NOT LIABLE.
learned counsel for the Appellant said since the claim brought by the Respondents was a joint one against the Defendants the action is not severable as both defendants shall rise or fall together.
He referred to Ihunde v. Samson Roger Nig. Ltd. (2000) FWLR (pt.16) 2782; Kadzi Int. Ltd v. Kano Tannery Co. Ltd (2004) 12 WRN 131.
That where a claim is brought in the alternative, once a head of claim is decided upon, the others are deemed abandoned and the trial judge having considered the claims of the Plaintiff under head one and both head I(a) and J(b) are deemed abandoned. He cited Maersk v. Nokoy Invest. Ltd (2003) 2 WRN 119 at 142.
In response learned counsel for the Respondent said section 48 of the Bills of Exchange Act is a statutory provision. That it exonerates the 2nd Defendant from liability from the facts of the case and so the issue as to whether it was right to have found one defendant liable and the other not liable in a suit where the Defendant are sued jointly and severally does not arise. That where a suit is made against two defendants jointly and severally judgment could be obtained against one or both of them. That the facts of each case speak for itself and the cases of Ihunde v. Samson Roger Nig. Ltd; Kadzi International Ltd v. Kano Tannery Company Ltd. and Maersk v. Nokry Investments Ltd. cited by the appellant’s counsel have no relevance to this appeal as none of the appellant’s counsel have no relevance to this appeal as none of those cases were decided based on the provisions of the Bills of Exchange Act. That the learned trial judge was not in error to have found against the Appellant as 1st Defendant and not against the 2nd Defendant.
The bone of contention in this issue arose from the decision of the trial judge when he held:-
“All I can say here is that by virtue in section 46 of the Bills of Exchange Act, the discharge of the 2nd defendant (as drawer) from liability to the 1st plaintiff (as holder) for lack of notice of dishonour of the cheques id not dependant on any of these factors. I hold that the 2nd defendant is not liable to the plaintiffs for the value of the cheques.
I dare say that this is without prejudice to the right of the 1st defendant to claim the value of the cheques from the 2nd defendant if it can establish that the 2nd defendant subsequently got (sic) the said sum of N3,000,000.00 or any part thereof from AIB or its insurers. From all I have said so far, the stage is now set to conclude this judgment I entire judgment for the plaintiff against the 1st defendant…”
The Appellant’s view or stand point is that the defendant cannot be excised from the liability that visited the 1st Defendant/Appellant. The Respondents disagree and contend that the 2nd Defendant could be so exculpated from blame and liability.
Generally, where there is a joint cause of action against two or more person, a discharge as against one of them operates as a discharge of all because the cause of action is one, once it is discharged all persons otherwise liable are consequently released. See Kadzi International Ltd v. Kano Tannery Co. Ltd (2004) 4 NWLR (pt.864) 545; Ihunde v. Samson Roger Nig. Ltd. (2000) FWLR 2782.
The view above was apply described by Salami JCA in See Kadzi International Ltd v. Kano Tannery Co. Ltd (supra) at 160 – 161 in the following words:-
“I also agree with the learned counsel for the first and second respondents that, learned trial Judge with respect, cannot approbate and reprobate. He is not entitled, in the circumstance of the suit, in which the parties are sued jointly, for find that he has no jurisdiction to try the claim in respect of one of the parties and then turn around to say he is competent to entertain the same suit in respect of the second person”.
Smith L.J. in Duck v. Mayer (1899) 2 QB 511 at 513 stated:
“It is, we think, clear law that a release granted to one joint debtor, operates as a discharge of the other joint tortfeasor, or the other joint debtor the reason being that the cause of action which is one and indivisible, having been realeased, all persons otherwise liable thereto consequently released.”
Clearly from the above the learned trial judge was in error to have released the 2nd defendant from a claim in which he was sued jointly and severally with the 1st defendant now appellant. therefore on this issue I answer positively and on the side of the Appellant.
ISSUE FOUR
WHETHER THE PROVISION OF SECTION 48 OF THE BILLS OF EXCHANGE ACT DISCHARGES A DRAWER WITHOUT NOTICE WHEN HE STILL HAS OR WILL BE IN CUSTODY OF THE SUM.
Learned counsel for the Appellant stated that section 48 of the Bills of Exchange Act purpose to discharge a drawer who had no notice of the dishonoured cheques but that Section 48(a) has a proviso which limits the extent of the discharge of the drawer who has no notice of the dishonoured cheques. That in the circumstance the proviso to section 48 ie section 48(a) limits to extent of discharge and so allows the 1st respondent to claim the amount owed by the 2nd Defendant despite the fact that he had no notice of the dishonoured cheques. That it will be unjust and inequitable to allow the 2nd Defendant to keep the amount of money in his custody still owed to the Respondents. Also that it could injust to have it paid to the Respondents as it would amount to double compensation. That the claim of the Respondents at best against the Appellant would be in negligence while that against the 2nd Defendant would be breach of contract for the 2nd Defendant admitted that up till then the Respondent did not have the N3 million and that he had not paid his own commission of N450,000.00 on the transaction.
In response the learned counsel for the respondents said issue 4 as formulated by the Appellant is a hypothetical issue and this court cannot engage in a voyage of discovery or speculation. He cited Bello v. Fayose (1999) 7 SCNJ 286 at 293; Royal Exchange Assurance (Nig.) Ltd. v. Anumnu (2003) 6 NWLR (pt.815) 52 at 117 – 118; Irienagbor v. Bazuaye (1999) 6 SCNJ 235 at 243 – 244.
A court cannot decide issue on speculation no matter how close what it relies on may seem to be to the facts. Speculation is not an aspect of inference that maybe drawn from facts that are laid before the court. Inference is reasonable from acts whereas speculation is a mere variant of imaginative guess which, even when it appears plausible never be allowed by a court of law to fill any hiatus in the evidence before it. Ivenagbor v. Bazuaye (1999) 6 SCNJ 235 per Uwaifo JSC; Ogunoneze v. State (1998) 5 NWLR (Pt.551) 521 at 55.
The learned trial judge had said in the judgment:-
“Learned counsel for the 1st defendant made further submissions to suggest that the 2nd defendant is with the N3,000,000.00 or that the will be subsequently compensated by the insurer of AIB of the N3,000,000.00 was actually trapped in AIB; or that he will be paid the N3,000,000.00 if AIB eventually resumes operations; or that AIB has been bought over by the new Diamond Bank. He therefore posited that it will not be in the interest of justice to find the 1st defendant liable to pay the said sum to the plaintiff by virtue of Section 48 of the Bills of Exchange Act, the discharge of the 2nd defendant (as drawer) from liability to the 10th plaintiff (as holder) for lack of notice of dishonour of the cheques is not dependent on any of these faction”.
It was submitted for the Appellant that by Section 48 (a) limits the extent of charge and allows the Respondents to claim the amount owned to them by the 2nd defendant despite the fact that he had no notice of the dishonour cheques. That section reads as follows:-
SECTION 48(A):-
“Where a bill is dishonoured by non-acceptance and notice of dishonour is not given, the rights of a holder in due course subsequent to the omission shall not be prejudiced by the omission”.
The issue as to the liability or otherwise of the 2nd defendant as found in this issue 4 cannot be dismissed as a speculative voyage of discovery as indeed the matter is very much alive and active in the circumstances.
The receipt of evidence, evaluation of the evidence and ascription of weight to the evidence tendered is the function of the trial judge. It is not the function of the court of Appeal to take up the duty of evaluation of evidence tendered in the trial court. Thus, except the conclusion reached by the trial court do not derive or flow from the evidence received, an appellate court will not intervene in the findings of facts made by the trial court. See Akano v. F.B.N. Plc (2004) 8 NWLR (pt. 875) 318 at 331; Omoborinola v. Military Governor of Ondo State (1998) 14 NWLR (pt.584) 89; Olanrewaju v. Governor of Ondo State (1992) 9 NWLR (pt.265) 335.
Revocation of a banking licence by the Governor of the Central Bank does not necessarily renew of the bank thereby making it incapable of suing or being sued or barring it from becoming an appellant or respondent in an appeal process. The revocation of the licence of a bank could have indicated an ill-disposition, all acute and serious ailment. It does not go beyond that to herald and constitute the death of the bank. The bank remains alive possessing it, legal personality, as sick as it could have been and as indicated by the revocation of its licence. See CCB (Nig.) Plc. v. O’Silvawax Int. Ltd. (1999) 7 NWLR (pt. 609) 97 at 103; Nzom v. Jinadu (1987) 1 NWLR (pt. 51) 533; Opebiyi v. Oshoboja (1976) 9 & 10 SC 195.
From all that I have stated above, inclusive of the submissions and judicial authorities I feel satisfied that the learned trial judge made proper findings and evaluation of the evidence before him but erred in the conclusion when he excluded the 2nd defendant from liability inspite of the claim being jointly and severally against him and the Appellant who was 1st Defendant. Therefore this appeal is allowed in part since the proper order by court should have included the 2nd Defendant in the liability. I order as the learned trial judge should have done as follows:-
Judgment is entered against the defendants 1st and 2nd jointly and severally in the following terms:-
1. The sum of N3,000,000.00 being the value of the dishonoured cheques.
2. Interest on the sum of N3,000,000.00 at rate of 10% per annum from today until the judgment sum is fully liquidated.
3. Costs of N20,000.00 to the Appellant to be paid by the Respondents.
RABIU DANLAMI MUHAMMAD, J.C.A.: I agree.
ABDU ABOKI, J.C.A.: I agree.
Appearances
Demola Bakre, A.O. Sambo For Appellant
AND
A.O. Agbolaho For Respondent
