ATLANTIC BROTHERS LIMITED v. ECOBANK NIGERIA PLC
(2014)LCN/7581(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 3rd day of December, 2014
CA/L/455/2012
RATIO
BANKING LAW: THE RELATIONSHIP BETWEEN A BANKER AND ITS CUSTOMER; WHETHER THE RELATIONSHIP BETWEEN A BANKER AND ITS CUSTOMER IS THAT OF DEBTOR AND CREDITOR
It has been pronounced in a motley of decided cases that the relationship between a banker and its customer is that of a debtor and creditor, founded on simple contract. Accordingly, a customer is entitled to the credit balance in the account – YUSUF V. CORPORATIVE BANK LTD (1994) 7 NWLR (PT. 676) 681. per. RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
ATLANTIC BROTHERS LIMITED Appellant(s)
AND
ECOBANK NIGERIA PLC
(Substituted for Oceanic Bank International Plc By the Order of the Court of Appeal made on the 5th day of February, 2013) Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): The suit, the subject matter of this Appeal was instituted by Writ of Summons and 3rd Amended Statement of Claim dated 13th of October 2009 – pages 638-642 of the Record of Appeal Vol. II.
The Appellant (as Claimant in the Lower Court), had claimed against the Respondent (Defendant in the Lower Court) the following:
(1) The sum of N1,371,700,000.00 being the cash value endorsed on the Ecobank cheque Nigeria Plc cheque No. 00000069 dated the 9th of May, 2008 issued in favour of the Claimant by Israel Ame.
(2) Interest on the said sum N1,371,700.00 at the rate of 21% per annum from the 6th day of June 2008 being the maturity date for payment of the cheque until final liquidation.
(3) General damages in the sum of N2,000,000,000.00.
(4) The sum of N1,000,000.00 as cost of this action.
After filing and exchange of pleadings, and hearing at the Lower Court, the Court, in a Judgment delivered on the 21st of December 2010, dismissed the claim of the Appellant in its entirety.
The Appellant is dissatisfied with the Judgment and has appealed it.
He filed a Notice of Appeal on the 17th of March 2011 – pages 782-785 of the Record of Appeal Vol. II with six (6) Grounds of Appeal.
FACTS OF THE CASE
The Appellant, a company incorporated in Nigeria, is a handler and supplier of Petroleum products, shipping, and general merchandise.
The Respondent is a banker of the Appellant, whose Account No. with the Respondent is 0851101004879.
On the 2nd of June 2008, the Appellant lodged an Ecobank Nigeria Plc cheque No 0000069 dated 9th of MAY 2008, in the sum of N1,371,700,000.00 (One billion, three hundred and seventy one million, seven hundred thousand naira) at the Awolowo Road, Ikoyi branch of the Respondent for payment.
At maturity, which was three days after the cheque was lodged in the account, the Respondent neither credited the Appellant’s account with the said sum, nor returned the cheque as unpaid, despite repeated visits to the Respondent’s Isolo and Awolowo Road, Ikoyi branches.
No information was given to the Appellant, other than that payment was still being processed.
All that the Respondent’s officials did each time the Appellant visited the branch was to plead with the Appellant. They made several unfulfilled promises that the account would be credited with the fund shortly.
The delay in crediting the Appellant’s account began to affect the Appellant’s operations. Its creditors became restive. His lawyers wrote a demand letter to the Respondent on the 14th of July 2008. The Respondent did not reply the solicitor’s letter, neither did he credit the Appellant’s account with the fund.
However, on the 21st of July 2008, the Appellant applied for, and obtained its statement of account from the Respondent. He noticed to his shock a notice in the entry quoted for the 4th of June 2008 which states thus
“Reject 69: Refer to Drawer Israel Ame”
This, in banking practice indicates that the cheque had probably been dishonoured.
The Appellant never received any such information, for the period he visited the bank persistently. The Appellant requested for the dishonoured cheque, and the Respondent could not produce same, neither could they explain its whereabouts.
As at the time of filing the suit, the subject matter of this appeal at the Lower Court, the Respondent’s officials have not been able to provide any information on the status of the cheque, or its cash value.
In its Amended Statement of Defence – pages 632-635 of the Record of Appeal Vol. II, the Respondent did not deny receiving the cheque but stated that it received a letter from the paying bank on the 4th of June 2008, advising it not to give value to the cheque.
It however said that he notified the Appellant of an alleged dishonour.
The Appellant filed its Brief of Argument on the 18th of March 2013. It is settled by M. B. Ganiyu.
The Respondent filed its Brief of Argument on the 30th of August 2013 but same was deemed field on the 16th of October 2014. It is settled by Folu Aremu Esq.
The Appellant filed a Reply Brief on the 5th of February 2014, but same was deemed filed on the 16th of October 2014.
The Appellant abandoned his Ground No 1 in the Ground of Appeal and has formulated no issue for determination from the said Ground one.
He has however distilled three (3) issues for determination from the remaining Grounds of Appeal.
They are:
(1) “WHETHER HAVING HELD THAT THE ECOBANK OF NIGERIA PLC CHEQUE DATED 9TH MAY 2008 WAS DISHONOURED, THE LOWER COURT WAS RIGHT IN HOLDING THAT SEVEN WEEKS COULD IN THE CIRCUMSTANCES OF THIS CASE BE CONSIDERED A REASONABLE TIME FOR THE RESPONDENT TO NOTIFY THE APPELLANT OF THE FACTS OF THE DISHONOUR OF THE CHEQUE? This issue has been formulated from ground two that is contained in the notice of appeal.
(2) “WHETHER THE LOWER COURT WAS RIGHT IN HOLDING THAT THE RESPONDENT, A COLLECTING BANK COULD NOT BE HELD LIABLE FOR ANY LOSS SUFFERED BY THE APPELLANT IN ITS HANDLING OF THE CHEQUE DATED 9TH MAY 2008 DEPOSITED FOR PAYMENT IN SPITE OF THE BANKER/CUSTOMER RELATIONSHIP BETWEEN THE APPELLANT AND THE RESPONDENT.” This issue has been formulated from grounds 3, 5 and 6 contained in the notice of appeal.
(3) “WHETHER THE LOWER COURT WAS RIGHT IN HOLDING THAT IT WOULD NOT BE EQUITABLE TO HOLD THE RESPONDENT LIABLE FOR THE LOSS OF THE APPELLANT SINCE THE APPELLANT’S RIGHT AGAINST THE ISSUER OF THE CHEQUE HAD BEEN EXTINGUISHED UNDER THE LIMITATION LAW.” This issue has been formulated from ground 4 contained in the notice of appeal.
The Respondent had acknowledged the abandonment of Ground No 1 in the Appellant’s Notice of Appeal, and has consequently also distilled three (3) issues for determination from the Grounds of Appeal.
They are:
(1) “WHETHER HAVING HELD THAT THE ECOBANK OF NIGERIA PLC CHEQUE DATED 9TH MAY 2008 WAS DISHONOURED, THE LOWER COURT WAS RIGHT IN HOLDING THAT SEVEN WEEKS COULD IN THE CIRCUMSTANCES OF THIS CASE BE CONSIDERED A REASONABLE TIME FOR THE RESPONDENT TO NOTIFY THE APPELLANT OF THE FACTS OF THE DISHONOUR OF THE CHEQUE?
(2) “WHETHER THE LOWER COURT WAS RIGHT IN HOLDING THAT THE RESPONDENT, A COLLECTING BANK COULD NOT BE HELD LIABLE FOR ANY LOSS SUFFERED BY THE APPELLANT IN ITS HANDLING OF THE CHEQUE DATED 9TH MAY 2008 DEPOSITED FOR COLLECTION IN SPITE OF THE BANKER/ CUSTOMER RELATIONSHIP BETWEEN THE APPELLANT AND THE RESPONDENT.”
(3) “WHETHER THE LOWER COURT WAS RIGHT IN HOLDING THAT IT WOULD NOT BE EQUITABLE TO HOLD THE RESPONDENT LIABLE FOR THE LOSS OF THE APPELLANT SINCE THE APPELLANT’S RIGHT AGAINST THE ISSUER OF THE CHEQUE HAS NOT BECOME EXTINGUISHED UNDER THE LIMITATION LAW.”
A painstaking look at the respective issues distilled by the parties from the Grounds of Appeal, show that they cover the same field. In other words, they are the same. The Respondent in effect has adopted the Appellant’s issues for determination.
I shall therefore consider this appeal based on the Appellant’s issues for determination.
ISSUE NO 1
(1) “WHETHER HAVING HELD THAT THE ECOBANK OF NIGERIA PLC CHEQUE DATED 9TH MAY 2008 WAS DISHONOURED, THE LOWER COURT WAS RIGHT IN HOLDING THAT SEVEN WEEKS COULD IN THE CIRCUMSTANCES OF THIS CASE BE CONSIDERED A REASONABLE TIME FOR THE RESPONDENT TO NOTIFY THE APPELLANT OF THE FACTS OF THE DISHONOUR OF THE CHEQUE?
The Appellant submits that the Lower Court had held that when the cheque was dishonoured, it was incumbent on the Respondent to notify the Appellant of the dishonor, but went on to hold that the delay of seven weeks before the notice of dishonor was given to the Respondent was not unreasonable.
He submits that the Lower Court relied on the case of BANK OF THE NORTH LTD. V. YAU (2001) 10 NWLR (PT. 721) 408 in arriving at its decision. Urges Court that the reasoning of the Lower Court was wrong. This is because the Court had clearly read into the decision, the point that was not decided therein, namely that a delay that is not up to one year where the sum in question is as large as N1,371,700,000.00, will be said not to be unreasonable. He urges that the Lower Court should have reasoned otherwise because of the large sum of money involved in the present case.
He submits that the facts in the case of BANK OF THE NORTH LTD V. YAU (supra) are different from the facts in the present case. That the yardstick for measuring the fact of reasonableness of the length of notice ought to be different. That to hold that seven weeks compared to one year as in the BANK OF THE NORTH’S case is reasonable, did not meet the justice of the case.
He submits that in the present case, the circumstances is that the cheque was issued in settlement of a debt owed the Appellant, and that within the first few days of presenting the cheque to the Respondent for payment, the drawer was available, and told the Appellant that his account had been debited by his own bank of the value of the cheque.
It is the Appellant’s case therefore, that at the time it realized from the Statement of Account issued on 21st July 2008, that there was a problem with the cheque, the drawer and his company had disappeared into thin air. All hopes of realizing the value of the cheque were dashed in consequence.
He submits that by virtue of Section 49(1)(1) of the Bills of Exchange Act (Cap B8, LFN 2004), the 7 weeks by which the Respondent delayed in notifying the Appellant of the dishonour of the cheque, cannot be said to be reasonable.
He submits that the Respondent admitted that it received a letter from Eco bank Nigeria PLC on the 4th of June 2008, advising it not to give value to the cheque. But he did not disclose this to the Appellant. On the 21st of July 2008, when the Appellant’s Statement of Account was issued, it was the first time that he knew that there was a problem – citing NWANDU V. COOPERATIVE BANK OF EASTERN NIG. (1981) 2 PLR. 449.
ISSUES 2 AND 3
Arguing Issues 2 and 3 together, the Appellant submits that the Lower Court had held that it would be inequitable to hold the Respondent liable for the Appellant’s loss, while Crestgrade Oil & Gas Ltd (the Appellant’s debtor) is allowed to go scot free.
He submits that the Lower Court did not consider the evidence before arriving at that conclusion. That the Appellant testified that he would have been able to hold the Drawer liable to the debt, had the fact of the dishonour of the cheque been brought to his attention timeously. That at the time, he knew about the dishonor of the cheque, the Drawer had disappeared, and he had lost the money.
He submits that, he therefore has a remedy against the Respondent. He submits that the Respondent is liable to the extent of the loss of the Appellant. The Respondent, being the Appellant’s banker, ought to exercise all due case and diligence, in the relationship, and its conduct with respect to the Appellant. Cites UBA V. FOLARIN (2003) 7 NWLR. PT. 818 @ 18.
The Appellant submits that the fact that some other person may be liable to the Appellant, or that some other remedies are available to the Appellant, is not a reason, or ground to refuse the Appellant the remedies sought against the Respondent.
He urges this Court to hold that the Respondent was liable to the Appellant, to the extent of its loss in the transaction involving the Ecobank Nigeria Plc cheque, dated 9th May 2008, issued in favour of the Appellant.
He submits that the extent of the loss of the Appellant, is adumbrated in the Particulars of Negligence, and particulars of breach as reflected in its 3rd Amended Statement of Claim (pages 638-642 of the Record of Appeal).
Urges Court to resolve all the issues in favour of the Appellant.
The Respondent submits that by letter of 3rd June 2008, it states that the payment of the cheque in dispute be stopped from reason “CHEQUE UNDER INVESTIGATION. That Exhibit C2 was delivered with the copy of cheque attached, to the Appellant personally, on the 5th of June 2008, when he called to enquire about the fate of the cheque which was deposited for collection on June 2, 2008. That the Provisions of Section 49 (e) of the Act had been met by the Respondents.
He submits that the written notice of dishonor as at 23/06/2008 was confirmed by CW2 (Appellant’s witness), and the Suit was commenced on the 28th of July 2008, a gap of over one month between the acknowledged date of receipt of the written notice of 23/06/2008, and the commencement of the suit.
That there is evidence that the Defendant’s official handed over a copy of Exhibit C2 to CW1 and CW2 on 5th June 2008, when CW1 and CW2 honoured the invitation at the Respondent’s bank, at No. 142, Awolowo Road, Ikoyi Branch.
He submits that personal communication under Section 49 (e) of the Act is sufficient in law. That the contents of paragraphs 2,3 and 4 of Exhibit A12, which is Claimant’s letter to Ecobank, are a confirmation of Claimant’s acknowledgement of having been informed previously of the dishonour of the cheque.
He submits that Section 49 (e) of the Act does not provide any particulars form of notice. That indeed that section did not say that the notice of dishonor must be given in writing. Cites PRIDEANX R.O. V. CRIDDLE (1869) LRA QB 455 (that personal communication of the dishonoured cheque was sufficient as due notice). ROYAL BANK OF IRELAND LIMITED V. ISOBEL P.O’ROURKE (1962) IRI59.
He submits that subsequent to the dishonour of the cheque and after the receipt of notice of dishonor, the Claimant, through CW1 and CW2, was still in constant communication on the same subject matter with Israel Ame, the Drawer of the dishonoured cheque No. 000000069 dated 9th of May 2008, and issued for N1.371 17 billion, in favour of the Claimant – referring to paragraph 6 of CW2’s written statement on oath (Exhibit B).
He submits in sum, that the provisions of Section 45 2(b) (c) and (d) (1) of the Act has been met satisfactorily, with regard to the presentation of the cheque for payment.
He submits that Section 49 (1) provides that notice must be given within a “reasonable time” and this depends on the special circumstances inherent in the facts of the case.
He submits that the Respondent’s power, responsibility or duty, cannot cover, or extend to the point whereby it will, as a collecting bank improve itself upon, and indeed force the paying bank to honour a cheque drawn on it by its own customer.
He submits that the contractual duty of the paying bank, to pay or dishonour the cheque of its customer, is entirely within the contractual relationship between such paying bank and its customer. That it was not possible for the Respondent to perform an exercise which is beyond its control or authority.
That delay in dealing with a bill duly presented, is the responsibility of the paying bank, and the Respondent who presented the cheque for collection, was diligent in treating the cheque as dishounoured, because payment could not be obtained.
He submits that the notice of dishonour served by the Defendant on the Claimant seven weeks after the lodgment of the cheque was served within a reasonable time, having regard to the circumstances of this case.
Urges Court to hold that it will be most inequitable to let off Crestgrade Oil and Gas Ltd, who took the benefit of the contract to go scot free, whilst the Defendant who was not privy to the contract between them, and who has not done any wrong, known to law is burdened with debt.
He submits that the responsibility for liability rests on the party who was to give notice, but did not. In this case, notice was given sufficiently, therefore the responsibility shifts, and becomes that of the drawer of the instrument – Israel Ame, who issued his personal cheque for N1.737 billion (which was dishonoured) in settlement of his Company’s indebtedness to the Appellant.
In his reply Brief of Argument, the Appellant urges Court to discountenance all the arguments canvassed by the Respondent in paragraphs 4.1 to 4.19 of his Brief of Argument. That all the authorities cited by him should also be discountenanced.
ISSUE NO 1
In considering this issue, and indeed the appeal as a whole, the first thing that operates on my mind is the claim of the Claimant at the Lower Court, which is reflected in paragraph 11 of the 3rd Amended Statement of Claim dated 13th of October 2009 – pages 638 – 642 of the Record of Appeal – Vol. II.
I shall reproduce same verbatim
(1) The sum of N1, 371,700,000.00 being the cash value endorsed on the Ecobank Nigeria Plc cheque No. 00000069 dated 9th May 2008 issued in favour of the Claimant by Israel Ame.
(2) Interest on the said sum of N1, 371,700,000,00 at the rate of 21% per annum from the 6th day of June 2008 being the maturity date for payment of the cheque, until final liquidation;
(3) General damages in the sum of N2,000,000,000.00; and
(4) The sum of N1,000,000,00 as cost of the action.
There is no pointed claim for NEGLIGENCE. It seems to me more like a claim to recover a debt with the attendant interest and general damages.
The learned trial Judge had held inter alia, that the period of seven weeks could in the circumstances of this case be considered a reasonable time for the Respondent to notify the Appellant of the facts of the dishonor of the cheque.
Now by letter dated 3rd June 2008 it says inter alia to stop payment of cheque for the reason “CHEQUE UNDER INVESTIGATION”.
Exhibit C2 was served on the Appellant on the 5th of June 2008 PERSONALLY. The written notice of dishonor as at 23rd of June 2009 was confirmed by CW2 (Appellant’s witness) and the suit was commenced on the 28th of July 2008.
There is the need to see what really transpired in this case, in other to appreciate the reasoning and conclusion of the Lower Court.
First and foremost, the dishonored cheque issued from a Director of Crestgrade Oil and Gas Limited as consideration for supplies it made to Crestgrade Oil and Gas Limited. The Company is a different legal entity from the drawer, who is one of the Company’s Director. Therefore it stands to reason that Crestgrade Oil and Gas Limited is indebted to the Appellant, who is entitled to a Common Law cause of action in debt.
This entitlement in Common Law should not be against the Respondent. This is because the Respondent (as collecting bank) can only act as a means of procuring/collecting payment rather than forcibly providing finance by all means.
The personal cheque of Israel Ame in the sum of N1,371,700,000 (One billion, three hundred and seventy-one million, seven hundred thousand naira) dated 9th May 2008, was deposited for collection by the Appellant/payee on June 2nd 2008; which was presented for payment on 3rd of June 2008, through clearing house.
As rightly postulated by the Respondent in paragraph 4:6 of his Brief of Argument, the cheque (which is a Bill of Exchange) was dishonoured by non-payment, upon the paying bank’s refusal to make payment on the cheque. Vide its debit note of June 3, 2008, the cheque was dishonoured. The debit note was accompanied by a photocopy of the cheque (as the original cheque was withheld by the paying bank).
The letter of June 3rd 2008 has this to say
“The Head of Clearing
Oceanic Bank Int. Plc.,
Ozumba Mbadiwe Street,
Victoria Island
Lagos.
STOP PAYMENT ON ECOBANK CHEQUE 00000069 FOR N1,371,700,000.00 IN FAVOUR OF ATLANTIC BROTHERS LIMITED.
We write asking you not to give value to the above mentioned cheque presented on us by yourselves on 03.06.2008 for the reason “CHEQUE UNDER INVESTIGATION”.
We have returned the debit via first session clearing activities on 04.06.2008 and attached a copy of the cheque since the physical instrument has been withheld by us.
Yours faithfully,
For: ECOBANK NIGERIA PLC.
CHRIS ONUEGBU CLARA ONWUDE
Head Office Clearing Head, Clearing.
Page 330 of the Record of Appeal Vol. I
On the 5th of June 2008, the Appellant, called at the 142 Awolowo Road, Ikoyi branch to enquire about the fate of the cheque which they deposited for collection on the 2nd of June 2008. There, they were delivered Exhibit C2, with the copy of the cheque (This was true PERSONAL COMMUNICATION).
The provisions of Section 48 of the Bills of Exchange Act, provides that when a bill has been dishonoured by non-acceptance, or by non- payment, notice of dishonour must be given.
The information in Exhibit C2 which was now in the Appellant’s possession, was referred to in the correspondence between Appellant and the paying bank (Israel Ame’s bank) with which it had no banker/customer relationship.
The written notice of dishonor as at 23rd of June 2008 was confirmed by CW2 – SUNNY OLA BOWOTO.
DW1 – INI IME INYANG, Operational Manager with the Defendant testified, that when they received the cursion notice from Ecobank that they should not give value, that the cheque is not good for value and that they were withholding the cheque, he informed his account officer to inform the Appellant – pages 755 – 756 of the Record of Appeal Vol. II.
Under Section 49(e) of the Act, personal communication is sufficient.
A cursory look at Exhibit A12, Claimant’s letter to Ecobank – paragraphs 2, 3 and 4 thereof, confirm that the Appellant acknowledged, having been informed personally, of the dishonor of the cheque.
Solicitor’s letter was written to the Respondent querying the dishonouring of the cheque – paragraphs 2, 3 and 4 of Exhibit A12 dated 2nd October 2008.
Therefore it is true to say that the Appellant was aware of the dishonouring of the cheque timeously, immediately the Respondent became aware of the dishonor.
In Exhibit A13 dated 2nd October 2008 paragraph 2 thereof, it has this to say
“RE: STOP PAYMENT ON ECOBANK CHEQUE NO. 00000069 FOR N1,371,700,000 IN FAVOUR OF ATLANTIC BROTHERS LIMITED”
Exhibit A14 headed RE-ECOBANK CHEQUE NO. 00000069 FOR N1,371,700,000 ISSUED BY ISRAEL AME dated 8th October 2008 in its paragraph 2 has this to say
“We wish to advise that our customer who issued the cheque in question had grossly insufficient funds in his account when the cheque was presented for clearing. Similarly, it is pertinent to note that amounts of the value of the cheque in question are usually moved between banks by RTGS and not clearing. This prompted us to advise Oceanic Bank Plc, the presenting bank that value would not be given for the cheque and to proceed to investigate the cheque”
– page 191 of the Record of Appeal Vol. I.
Indeed the whole of Exhibit A14 is instructive. The Appellant obtained from the Respondent the statement of its account, which showed that the cheque was dishonoured by non-payment by the drawee/paying bank – Ecobank Nigeria Plc – last two entries on Exhibit A6.
It is apparently clear that the Appellant deposited the Ecobank of Nigeria Plc cheque dated 9th May 2008, at the Respondent’s office. This was done on the 2nd of June 2008. By the 3rd of June 2008, a letter had issued to stop payment of the said cheque, due to the cheque being under investigation.
On the 5th of June 2008, Exhibit C2 was served on the Appellant personally, pursuant to Section 49 (e) of the Bills of Exchange Act Cap. B8, Laws of the Federation of Nigeria 2004.
A written notice of dishonor, as at 23rd of June 2008 was confirmed by CW2 (Appellant’s witness at the trial), and the suit was instituted on the 28th of July 2008.
It is clear that the Respondent, in the circumstances of the case, could not have treated the matter in a shoddy fashion, as investigation was going on in respect of the cheque.
The Appellant was put on notice timeously. This is my honest view.
The learned trial Judge was therefore right, when it held that the period of seven weeks (7) could in the circumstances of this case be considered a “reasonable time” for the Respondent to notify the Appellant of the facts of the dishonor of the cheque.
This issue is resolved in favour of the Respondent and against the Appellant.
ISSUE NO 2
I must say that I had treated this issue essentially in my consideration of Issue No 1.
I however shall add, that a banker-customer relationship, is not one that should be abused by either side.
It has been pronounced in a motley of decided cases that the relationship between a banker and its customer is that of a debtor and creditor, founded on simple contract. Accordingly, a customer is entitled to the credit balance in the account – YUSUF V. CORPORATIVE BANK LTD (1994) 7 NWLR (PT. 676) 681.
In the present instance, there was not a demand, and a refusal to comply with the demand.
When the Appellant demanded for the outcome of the cheque, the Respondent by personal communication, informed him of the outcome of the cheque.
The Respondent in my view, cannot be held liable for any loss suffered by the Appellant, in its handling of the cheque dated 9th May 2008 which was deposited with the Respondent.
There was, in the circumstances no breach of contract, which existed between the Appellant and the Respondent.
A customer, being entitled to any amount standing in his account, the absence of funds in his account constitutes an exception to that entitlement. If there are no funds in his account, the banker cannot be made to perform “miracles” by speaking fund into the customer’s account.
There is no evidence to show that the Respondent turned down the request of the Appellant as to the position of his account with it.
The issue of whether the Respondent exercised all due case and diligence in the relationship, and its conduct with respect to the Appellant is not the point here at all, as I find that he exercised due care and diligence.
Therefore the Lower Court was right in holding that the Respondent, a collecting bank, could not be held liable for any loss suffered by the Appellant in its handling of the cheque dated 9th May 2008 deposited for payment by the Appellant.
This issue is resolved in favour of the Respondent and against the Appellant.
ISSUE NO 3
The Respondent in paragraph 5.7 of his Brief of Argument had argued that the argument put forth by the Appellant under the 2nd and 3rd issues formulated for consideration, were raised obiter, and in passing, incidentally and collaterally in the Judgment of the trial Court.
I am tempted to agreeing with this line of thought. This is because, in one breadth the Appellant in his particulars, buttressing Ground No 4 of his Ground of Appeal (Particular 1) – page 784 of the Record of Appeal, he had stated that the claim against the Defendant is founded on negligence; did not claim NEGLIGENCE on the face of the claim.
Moreso, the fulcrum of the Appellant’s appeal, as I understand it, is whether the Respondent is liable for the loss allegedly suffered by the Appellant simpliciter.
When the Appellant argued in his brief, that he had testified to the fact that he had lost all contact with both the drawer and his company, and that this happened while the cheque was deposited into the custody of the Respondent, there is evidence that subsequent to the dishonor of the cheque, and after the receipt of notice of the dishonor, the Appellant through CW1 and CW2 was still in constant communication on the same subject-matter, with Israel Ame, the drawer of the dishonoured cheque No. 00000069 dated 09/05/2008, and issued for the sum of N1,371,700 billion, in favour of the Appellant-Exhibit B in paragraph 6 of CW2’s written statement of oath.
The issue of “REASONABLE TIME” is what the matter before Court is hinged on and not the issue of limitation.
When the learned trial Court observed that the Appellant’s right against the issuer of the cheque had been extinguished under the Limitation Law, she said so by the way.
This issue is resolved in favour of the Respondent and against the Appellant.
In all, the Appeal is bereft of merit and same is dismissed.
The Judgment of Honourable Justice A. Olateru-Olagbegi of the High Court of Justice Lagos State delivered on the 21st day of December 2010 in Suit No LD/1001/2008 is hereby affirmed, with N30,000 costs in favour of the Respondent.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, RITA NOSAKHARE PEMU JCA. I agree with her conclusion that the appeal lacks merit and should be dismissed. I also dismiss the appeal and I abide by the consequential orders in the lead judgment.
JAMILU YAMMAMA TUKUR, J.C.A.: I had the opportunity of reading before today the lead judgment just delivered by my Lord Rita Nosakhare Pemu JCA, and I agree with it and I abide by the consequential orders made therein.
Appearances
M. B. Ganiyu Esq. with him O. Oyewole Esq. and B. OmolonaFor Appellant
AND
Folu Aremu Esq., and S. E. Ugho Esq.For Respondent
