MR. KENNETH OKEKE v. UNITED BANK FOR AFRICA PLC
(2019)LCN/12906(CA)
In The Court of Appeal of Nigeria
On Monday, the 25th day of March, 2019
CA/L/1231/2017
RATIO
COURT AND PROCEDURE: HOW TO PROVE PAYMENT OF MONEY
“See FBN V MAINASARA (2004) LPELR 7363 (CA) on how payment of money into an account may be proved: “A trial is not an investigation, and an investigation is not the function of a Court. A trial is the public demonstration and testing before a Court of the cases of the contending parties. The demonstration is by assertion and evidence and the testing is by cross-examination and arguments. The function of a Court is to decide the case between the parties on the basis of what has been so demonstrated and tested. Having alleged lodgements of various amounts to the appellant bank, the onus is squarely on the respondent to establish this very material fact by admissible and credible evidence. Payment of money into an account may be proved either by the oral evidence of the person who actually made the payment personally to the bank or by the production of bank tellers or acknowledgement showing on the face of it that the bank had received the payment. This is because a bank teller duly stamped with an official stamp of the bank and properly initiated by the cashier constitutes prima facie proof of payment of the sum of the money therein indicated and a customer after producing such a receipt needs not to prove more unless the payment is being seriously challenged. See Aeroflot v. U.B.A. (1986) 3 NWLR (Pt.27) 188 at 190 and Ishola v. SGB (Nig.) Ltd. (supra) 405 at 427.” Per BA’ABA, J.C.A ( Pp. 24-25, para. F)”
COURT AND PROCEDURE: EFFECT OF ISSSUE FOR DETERMINATION
“This Court in the case of OLUSANYA V OSIBAMOWO (2011) LPELR 4397 held thus on the effect of issue(s) for determination not tied to the grounds of appeal: “Issues for determination are normally tied to grounds of appeal. But non-compliance with the Procedure would not vitiate the issues. They may still be considered on the merits in the interest of justice, especially if the other side of the divide ties the grounds of appeal to the issues…” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
COURT: DUTY OF THE COURT OF APPEAL
“The Duty of an appellate Court when hearing appeals was spelt out in ATANDA & ORS V AJANI (1989) LPELR ? 589 (SC) “…an appellate Court is only left with a duty to see: (a) Whether there was evidence to support the findings and/or the decision of the trial Court. (b) Whether the trial Court has made a correct assessment of the evidence before it. (c) Whether the trial Court has wrongly accepted or rejected any evidence tendered at the trial. Or (d) Whether there has been an erroneous appraisal of facts leading to erroneous conclusions in the case. See A. Anyaoke v. Dr. F. Adi (1986) 3 N.W.L.R. 731 at 742,…” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
MR. KENNETH OKEKE
(Carrying on business under the name and style of GOLDEN RINGS INTL CO. NIG) Appellant(s)
AND
UNITED BANK FOR AFRICA PLC Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.(Delivering the Leading Judgment):
This is an appeal against the decision of the Lagos State High Court per OSHODI, J. delivered on 5th October, 2016 in suit no: LD/501/2010. The Appellant commenced the suit via a writ of summons for the following reliefs:
a. The sum of N9,056,250.00 (Nine Million, Fifty-six Thousand, Two Hundred and Fifty Naira), being the face value of the Manager?s cheque that was debited on his account.
b. The sum of N10,000,000.00 (Ten Million Naira) for malicious defamation of character.
c. AN ORDER directing the Defendant to write a letter to Fidelity recanting the allegation of crime made against the Claimant.
d. AN ORDER directing the Defendant to cause to be published in two national dailies an unreserved apology to the Claimant for the malicious defamation of character occasioned by their letter to the Fidelity Bank Plc.
e. Interest at the rate of 10% per annum from the date of judgment until final liquidation of the sum.
f. The sum of N125,000.00 (One Hundred and Twenty-five Thousand Naira) being the sum deducted as charges on the N9,056250.00 (Nine Million, Fifty-six Thousand, Two Hundred and Fifty Naira) debited on the Claimant?s account by the Defendant.
g. The cost of this suit may be assessed by the Registry of this Court.
The lower Court dismissed the claims of the Appellant, dissatisfied with the decision filed a Notice of Appeal on 7th November, 2016.
Pursuant to rules of Court the parties filed and exchanged briefs. The Appellant?s brief and reply brief were filed on 23/11/17, and 10/1/2018 respectively. They were settled by N.E. Osigwe; O.L. Osagie and V. C. Uketui of Chase Solicitors, who formulated three issues for determination:
1. Whether the trial judge was right in his decision that the Claimant/Appellant failed to formulate a case of libel and did not prove publication of the libel material against the Defendant/Respondent.
2. Whether the trial Court was correct in its decision that the Claimant/Appellant failed to prove that there was deposits of money in his account by his customer?
3. Whether the Trial Court was right to hold that the Defendant need not prove anything despite making serious allegation of fraud to justify that the sum of N9,000,000.00 (Nine Million Naira) found in Claimant?s Account belongs to it?
While the Respondent?s brief was filed on 14/12/17 and was settled by Matthew Esonanjor of M. E. Esonanjor & Co. wherein he distilled three issues to wit:
1. Whether the Appellant (Claimant at the Lower Court) proved publication of any libelous material against him by the Respondent (Defendant at the Lower Court) in order to ground a case of libel against the Defendant (Respondent herein). (Distilled from Ground 3 of the Notice of Appeal).
2. Whether the onus was on the Appellant (Claimant at the Lower Court) to furnish the Court with cogent proof that the monies paid into the account of Golden Rings International Company Nigeria was actually paid into that account by the people the Appellant claimed to have made the payments into the said accounts. (Distilled from Grounds 4 of the Notice of Appeal).
3. Whether the Trial Judge was wrong in its judgment when it held that Respondent need not prove anything when the Appellant has not succeeded in establishing his case, at least prima facie, before the necessity for the Defendant (Respondent herein) to confront the Appellant?s case. (Distilled from Ground 6 of the Notice of Appeal).
The facts of the case in summary is that the Appellant who maintains an account with the Respondent raised a managers? cheque in the sum of N9,056,250 (Nine Million, fifty-six thousand, two hundred and fifty naira) for the benefit of Romvic Ventures Ltd alongside other sundry charges.
Following the grant of the managers? cheque, the Respondent wrote a letter to Fidelity bank plc. where the managers? cheque was deposited; informing the bank that the managers? cheque was a stolen instrument and requested that value should not be given to it. On this strength, Fidelity bank plc. wrote to the Appellant?s customer (Romvic Ventures Ltd) informing them that the managers? cheque was a stolen cheque and same was returned with a copy of the Respondent?s letter and the managers? cheque.
PRELIMINARY OBJECTION
Before going to the submissions of counsels on the main issue, it is important to consider the objection raised by the Respondent.
The Respondent raised an objection to the grounds of appeal.
Respondent submitted that the Appellant failed to raise any issue from grounds 1, 2 & 5 of the grounds of appeal and also failed to state what grounds of appeal contained in the Appellant?s six grounds of appeal the issues formulated for determination by him were distilled from. He relied on the cases of ALHAJA RALIAT LAWAL & ANOR V BABATUNDE SHOLANKE & ORS (2015) 13 NWLR (PT 1477) 489 AT 498, PARAS A ? B, CHUDI AKUNYILI V IDEMILI EJIDIKE (1996) 5 NWLR (449) 381 AT 408, PARAS B ? C, amongst other cases. He submitted that the Appellant did not formulate any issue from grounds 1, 2 & 5 and that issues 1, 2 & 3 has no link with grounds 1, 2 & 5 of the grounds of appeal.
The Respondent in his submission added that where an Appellant fails to formulate any issue from any of the grounds of appeal, such grounds are deemed to have been abandoned. He relied on the cases of AIGBOBAHI & ORS V AIFUWA & ORS (2006) LPELR ? 267, 6, PARAS B ? C, NGILARI V MOTHERCAT LTD (1999) LPELR ? 1998, 47 ? 48, PARAS G ? B, amongst other cases.
The Respondent submitted that the Appellant?s brief of argument not having stated what grounds of appeal each of the issues raised is distilled from is incompetent and the appeal ought to be dismissed as same is bereft of any brief.
Appellant in reply submitted that the Respondent?s objection is mere academic exercise, irrelevant and without merit. He submitted that the Appellant duly distilled his issue 1 from grounds 2 and 3 of his grounds of appeal, while issue 2 was distilled from grounds 4 & 5 whilst issue 3 was distilled from grounds 1 and 6 of the grounds of appeal.
Appellant added that the particulars of the grounds of appeal show the nexus between the grounds of appeal and the issues for determination. He referred to the case of F.B.N PLC v. I.A.S.C.A NIG LTD (2015) 3 NWLR (PT 1445), 1. He also submitted that there is no rule requiring an Appellant to state the grounds of appeal from which a particular issue is distilled from, rather the practice is done to help the Court in the speedy dispensation of justice. He also added that even if such rule exists, an omission to state which ground a particular issue is distilled from cannot compromise an Appellant?s constitutionally guaranteed right of appeal. He referred to the case of ODOM V PDP (2015) 6 NWLR (PT 1456) 527.
Appellant in conclusion submitted that the Respondent failed to comply with the express provisions of Order 10 Rule 1 of the Court of Appeal Rules, 2011, which states that a Respondent intending to rely upon a preliminary objection to the hearing of an appeal, has to give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and file such notice together with twenty copies thereof with the registry within the same time. He relied JEV V IYORTYOM (2014) 14 NWLR (PT 1428) 575.
RESOLUTION OF PRELIMINARY OBJECTION
I have since perused the grounds of appeal at pages 153 – 157 of the record of appeal and I find that indeed the Respondent merely raised the purported objection in his brief in passing and not in the con of a preliminary objection.
To my mind the issues raised are so fundamental that they may affect the life of the appeal therefore they stand as a preliminary objection. In REGISTERED TRUSTEES OF AIRLINE OPERATORS OF NIGERIA V NAMA (2014) LPELR – 22372 (SC) the apex Court stated on the question of how to raise a preliminary objection thus:
“I think it is fair to say that the method of raising a preliminary objection, apart from giving the appellant three clear days notice from the date of hearing, is now firmly settled. The respondent may file a separate, formal notice of preliminary objection. Alternatively, he may raise the objection in his brief of argument or he may employ both options. The decided authorities on the issue are to the effect that there is the need for the respondent or his counsel to seek the leave of the Court to move the objection before the hearing of the appeal. The effect of failure to move the objection during the oral hearing of the appeal is that it is deemed abandoned. See: Tiza & Anor. Vs Begha (2005) 15 NWLR (949) 616; (2005) 5 SC (Pt. II) 1 @ 7 where His Lordship Musdapher, JSC stated thus: “By virtue of Order 3 Rule 15(1) of the Court of Appeal Rules, a respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before hearing, setting out the grounds of the objection. Notice of preliminary objection can also be given in the respondent’s brief, but a party filing it in the brief must ask the Court for leave to move the objection [when] the oral hearing of the appeal commences. See: Nsirim Vs Nsirim (1990) 3 NWLR (Pt. 138) 285; Okolo Vs Union Bank of Nigeria (1988) 2 NWLR (Pt. 539) 618; Arewa iles Plc. Vs Abdullahi & Brothers Owsawa Ltd. (1998) 6 NWLR (Pt. 554) 508; Ajide Vs Kelani (1985) 3 NWLR (Pt.12) 248.” (Emphasis supplied). See also: Magit Vs University Of Agriculture & Ors. (2005) 19 NWLR (959) 211 @ 238 – 239 H-D; Oforkire Vs Maduike (supra).” Per KEKERE-EKUN, J.S.C ( Pp. 67-68, paras. E-F)
On the date of adoption of parties’ briefs – 12th of February, 2019, the Respondent counsel did not inform the Court of any preliminary objection nor sought leave to argue the objection in his brief at pages 6? 9. He raised the issues out of the blues; it neither carried a heading of preliminary objection nor any such warning. However the Appellant responded to it in the reply brief.
The apex Court frowns at this practice especially when it has to do with the grounds and issues for determination which is the pillar upon which an appeal stands. The Court in ODEDO V INEC (2008) LPELR – 2204 (SC) held on the attitude of Court to improperly raised preliminary objection:
“A preliminary objection cannot be raised in that subtle and uneventful way. Learned Senior Advocate for the appellant is correct when she submitted in her Reply Brief that the preliminary objection was improperly raised. The practice, and the accepted practice for that matter, is that preliminary objection in a Brief is raised in a conspicuous title in the name and style of “preliminary objection”. Thereafter the grounds and the arguments of or for the objection are stated and argued in the Brief……. Although counsel did not properly raise the preliminary objection, I shall not ignore it in the way I have ignored the case in view of the fact that I know the content of the objection. It is that the ground of appeal did not arise from the judgment of the High Court.”
Per TOBI, J.S.C (Pp. 33-34, paras. E-D)
Contrary to submissions of the Respondent, the issues 1, 2 & 3 complained about, arises from the grounds of appeal. Perhaps the Respondent wanted a word for word as issues but issues are drawn from the grounds and the particulars thereof. Issue 1 was drawn from grounds 1 and 2 while issue 2 flows from grounds 4 & 5 and issue 3 flows from ground 6. The particulars of each ground crisscross into other particulars of the grounds of appeal. For example ground 1 is closely related to ground 6 which also deals with the proof, while ground 3 also ground 6 and its particulars being facts adduced at trial has a link with the phrased issues, and throws more light on the issue complained about.
The cases cited by the Respondent in this regard are inapplicable. The Respondent has made heavy weather about the issues not being tagged to the grounds of appeal from which they flow. This Court in the case of OLUSANYA V OSIBAMOWO (2011) LPELR 4397 held thus on the effect of issue(s) for determination not tied to the grounds of appeal:
“Issues for determination are normally tied to grounds of appeal. But non-compliance with the Procedure would not vitiate the issues. They may still be considered on the merits in the interest of justice, especially if the other side of the divide ties the grounds of appeal to the issues, as commendably done by respondent’s learned counsel, Chief Okunuga, in respondent’s brief of argument. In other words, though the appellant did not specifically tie the issues formulated to the grounds of appeal affected by them, its rectification by respondent in his brief of argument cured the irregularity – see Kalu v. Odili (supra), Ukpo v. Imoke (supra) and the other bunch of cases cited on the issue by Mr. Adetunbi in the appellant’s reply brief.”
Per IKYEGH, J.C.A ( P. 21, paras. B-E)
The Appellant in his reply brief at clause 2.04 and 2.06 are on point of the complaint of the Respondent and this is due compliance.
The objection lacks merit and it is accordingly dismissed.
I shall proceed to the merits of the appeal and resolve the three issues as one.
ISSUE 1
The Appellant submitted that the lower Court erred in his decision that the Appellant has not formulated a case of libel. Appellant submitted that there are three elements of defamation that a plaintiff must prove:
1. That there is the publication of the material complained of by the defendant;
2. That the publication refers to no other person but the plaintiff conclusively;
3. That the publication is defamatory of the plaintiff.
He relied on SKYE BANK V AKINPELU (2010) 3 SC (PT II) 29 at 42.
Appellant submitted that there is no dispute that the letter was written by the Respondent to stop the payment of the managers? cheque. He added that the offending words from the Respondents were copiously pleaded in paragraphs 6 and 10 of the statement of claim. He submitted that the Respondent never denied the publication but only tried to justify same in their statement of defence. He relied on the cases of NSIRIM V NSIRIM (1990) 5 SC (PT 11) 94, AWONIYIN & ORS V THE REGISTERED TRUSTEES OF THE RESICRUCIAN ORDER (AMORC) (1990) 6 NWLR (154) 42 to submit that once a libellous material is found to have been written in a permanent form, there is a publication.
Appellant submitted that they have proved that the offending material was published to more than one person and that they have also formulated a serious case of libel against the Respondent by satisfying the conditions stated by the Supreme Court in the case of GUARDIAN NEWSPAPER & ANOR V AJEH (2011) 4 SC (PT 11) 69.
In response, the Respondent submits that the Appellant failed to prove publication of any libellous material. He relied on SKYE BANK & ANOR V AKINPELU (2010) LPELR – 3073 pg 10 paras B – F, OKECHUKWU V UBA PLC & ANOR (2017) LPELR – 43100, ILOBACHIE V ILOBACHIE (2005) LPELR – 1492, amongst other cases.
Respondent submitted that Exhibit E did not in any way directly or indirectly refer to the Appellant as the person alleged to have stolen the managers? cheque or issued same. He submitted that the said Exhibit E a letter addressed to the manager of Fidelity bank plc. never libelled the Appellant.
Respondent further submitted that in order to prove publication, at least one person to whom it was published must testify as a witness and credibly demonstrate that he perceived the document as libellous. He cited AROMOLARAN V AGORO (2014) LPELR ? 24037, 46 ? 47, PAR D, amongst other cases.
The Appellant in reply to the contention of the Respondent urged this Court to discountenance the argument canvassed and authorities cited in support of the Respondent?s argument that the Appellant did not prove he is the person referred to in Exhibit E. He submitted that the lower Court never made any pronouncement on the issue and that the issue cannot be validly raised now on appeal. He relied on the case of IDUFUEKO V PFIZER PRODUCTS LTD (2014) 12 NWLR (PT 1420) 96.
ISSUES 2 & 3
In arguing issues 2 & 3 together, the Appellant submitted that the lower Court was not correct in holding that the Appellant did not prove the ownership of the sum of N9,000,000 deposited into his account due to his failure to call the people who deposited the money into his account and also for failure to call his account officer. He relied on AEROFLOT V UBA LTD (1986) 3 NWLR (PT 27) P 188, SALEH v B.O.N (2006) 6 NWLR (PT 976) 316. He submitted that the Appellant pleaded in his reply to the statement of defence the source of the money in his account and that he equally tendered his statement of account. He submitted that the evidence was uncontroverted. He relied on ODUNSI V BAMGBALA (1995) 7 NWLR (PT 374) 641, UKWUYOK V OGBULU (2010) 5 NWLR (PT 1187) 316 at 321, IYERE V BENDEL FEED AND FLOUR MILLS (2008) 7 – 12 SC at 191, DR SEGUN ODENEYE V THE STATE (2001) 1 SC (PT 1) 1, AKINTOLA V BALOGUN (2000) 1 NWLR (PT 642) 545.
Appellant referring to the provisions of Section 134 and 135 of the Evidence Act, 2011 submitted that where there is an allegation of a crime in a civil or criminal trial, the proof must be beyond reasonable doubt. He submitted that the Respondent made a feeble attempt at the lower Court in accusing the Appellant of fraudulently procuring money via electronic transfer from the Respondent?s operational account.
He added that the particulars of the fraud was not pleaded and with the necessary particulars. He relied on the case of OBASANYA V BABAFEMI (2000) 15 NWLR (PT 689) 1 at 21. He also submitted that it is he who asserts that must prove. He relied on the case of MELIFONWU V EGBUJI (1982) 9 SC 145 at 163.
Appellant argued that in the absence of any cogent reason from the Respondent, that the lower Court ought to have invoked Section 167 (c) of Evidence Act in the Appellant?s favour. He added that the Appellant need not prove more than he had done as he did not plead that he was the one who personally deposited the money into the account or that his money was not credited to the said account.
The Respondent submitted on the contrary that the onus is on the Appellants to show that the monies transferred were paid by those he claimed did so. He referred to Section 131(1) of Evidence Act. He also submitted that the Appellant contradicted itself in cross examination as to who paid the monies and that none of them were called to testify. He relied on SALEH V B.O.N LTD (2006) 6 NWLR (PT 976) 316, ISHOLA V SOCIETE GENERALE BANK NIG LTD (1997) LPELR ? 1547, 34 PARAS C ?F, UNION BANK PLC V CLEAN VISION & CO. LTD (2015) LPELR ? 25900, 42 ? 43, PARAS C ? B (CA).
The Respondent contended that the deposit of N9,000,000.00 was not made by the Appellant into the account of Golden Rings International Co. Nig. on 17th August, 2009 and that no proof was tendered at trial as to who made the deposits. He referred to the findings of the lower Court at pages 151-152 of record and that this finding was not challenged.
He submitted that the lower Court was right when it held that the Appellant has failed to prove that the monies were actually paid into his account by the people he claimed to have done so.
On issue 3, Respondent submitted that the lower Court was right in its judgment when it held that the Respondent need not prove anything when the Appellant has not succeeded in establishing his case. He relied on Sections 131 and 132 of the Evidence Act, 2011, ANAEZE V ANYASO (1993) LPELR ? 480, 43, PARAS D ? E (SC), INEC & ORS V ORJI & ORS (2009) LPELR ? 4320, 25 ? 26, PARAS E ? A.
The Respondent submitted that it is for the Appellant to make out a prima facie case before the Respondent can confront his case as made out. He referred to the unreported case of UBA PLC V WADOF SOFTWARE CONSULTING LTD APPEAL NO. CA/L/772/2013.
He also added that the Respondent with cogent evidence rebutted the Appellant?s claim to the ownership of the money in question transferred into the account of Golden Rings International Company. He urged this Court to resolve these issues in favour of Respondent.
Appellant in reply referred to page 148 of the record and urged this Court to discountenance the references made by the Respondent in paragraph 5.2.4 of its brief of argument to facts neither pleaded in the statement of claim nor in the statement of defence and that they were struck out by the lower
Court on the ground that evidence led on facts not pleaded goes to no issue.
RESOLUTION
This issue dwells largely on the evidence led in proof that the money in question was deposited by a customer of the Appellant. In METROPOLITAN ESTATES V UNION BANK PLC (2018) LPELR – 43989 (CA) this Court following the apex Court held on the best way of proving payment of money into a bank account:
“The law certainly is that the “ipse dixit” of a witness can hardly be sufficient proof of payment made to a bank, where the fact of the payment or sum paid is in issue. See in this regard, the case of ISHOLA V. SOCIETE GENERALE BANK (NIG) LTD (1997) LPELR – 1547 (SC) where the Supreme Court per Iguh, JSC; said thus: – “Having alleged the said payment of N60,000.00 or N64,000.00 plus to the Respondent bank, the onus was squarely on the appellant to establish this very material fact by admissible and credible evidence. Payment of money into an account may be proved either by the oral evidence of the person who actually made the payment personally to the bank or by the production of a bank teller or acknowledgement showing on the face of it that the bank had received the payment. This is because a bank teller, duly stamped with the official stamp of the bank and properly initialled by the cashier, constitutes prima facie proof of payment of the sum of money therein indicated and a customer after producing such a receipt needs not prove more unless the payment is being seriously challenged. See Aeroflot v. U.B.A. (1986) 3 NWLR (Pt.27) 188 at 190.” See also the case of SALEH V. BANK OF THE NORTH LTD (2006) LPELR ? 2991 (SC) where the Supreme Court per Musdapher, JSC; (as he then was) said thus: – “The best way of proving payment of money into a bank account is by production of bank teller or an acknowledgment showing on the face of it that the bank has received the payment. A bank teller duly stamped with the official stamp of the bank and properly initialled by the cashier, constitute prima facie proof of payment of the sum therein indicated and a customer, after producing such a teller or receipts needs not prove more unless payment is being challenged, see Ishola v. S.G.B. (Nig.) supra and Aeroflot v. U.S.A. (1986) 3 NWLR (Pt. 27) 188.”
Also in FBN V M.O. NWADIALU & SONS LTD & ORS (2015) LPELR – 24768 (CA) on how payment of money into an account may be proved:
“The only way opened to the Respondents to dislodge the Appellants claim was for them especially the 1st and 2nd Respondents to produce pay in Tellers showing the stamp of the Bank or vide other viable and credible means showing that they have completely paid and retired all outstanding on the said over draft facility and not by blanket denial that they are not owing the debt or that they made some pay in See: 1. ALHAJI ABBA S. SALLEH VS BANK OF THE NORTH (2006) 25 NSCQR 582 AT 591 per MUSDAPHER JSC (LATER CJN rtd.) who said: “The best way of proving payment of money into a bank account is by the production of a bank teller or an acknowledgement showing on the face of it that the bank has received the payment. A bank teller stamped with the official stamp of the bank and properly initialled by the cashier, constitutes prima facie proof of payment of the sum therein indicated and a customer, after producing such a teller or receipt needs not proved more unless payment is being challenged. See Ishola Vs S.G.B (NIG) LTD supra and Aeroflot Vs. U.B.A (1986) 3 NWLR (Pt. 27) 188 2. ALHAJI AMINU ISHOLA VS SOCIETE GENERALE BANK (NIG) LTD (1997) 2 NWLR (PART 488) 405 AT 427 per IGUH, JSC who said: Payment of money into an account may be proved either by the oral evidence of the person who actually made the payment personally to the bank or by the production of a bank teller or acknowledgement showing on the face of it that the bank had received the payment. This is because a bank teller, duly stamped with the official stamp of the bank and properly initialled by the cashier, constitutes prima facie proof of payment of the sum of money herein indicated and a customer after producing such a receipt needs not prove more unless the payment is being seriously challenged. See Aeroflot vs. U.B.A (1986) 3 NWLR (Pt 27) 188 at 190.”
See FBN V MAINASARA (2004) LPELR ? 7363 (CA) on how payment of money into an account may be proved:
“A trial is not an investigation, and an investigation is not the function of a Court. A trial is the public demonstration and testing before a Court of the cases of the contending parties. The demonstration is by assertion and evidence and the testing is by cross-examination and arguments. The function of a Court is to decide the case between the parties on the basis of what has been so demonstrated and tested. Having alleged lodgements of various amounts to the appellant bank, the onus is squarely on the respondent to establish this very material fact by admissible and credible evidence. Payment of money into an account may be proved either by the oral evidence of the person who actually made the payment personally to the bank or by the production of bank tellers or acknowledgement showing on the face of it that the bank had received the payment. This is because a bank teller duly stamped with an official stamp of the bank and properly initiated by the cashier constitutes prima facie proof of payment of the sum of the money therein indicated and a customer after producing such a receipt needs not to prove more unless the payment is being seriously challenged. See Aeroflot v. U.B.A. (1986) 3 NWLR (Pt.27) 188 at 190 and Ishola v. SGB (Nig.) Ltd. (supra) 405 at 427.” Per BA’ABA, J.C.A ( Pp. 24-25, para. F)
There is a consensus on the best way to prove payment into an account; it is a public thing in a public place either by the production of a teller duly stamped and acknowledgement on the face of the teller or the oral/evidence on oath/testimony of the person who paid the money. This will be prima facie proof of payment.
From the judgment at page 151 the learned trial judge said thus:
Now in this present suit, the Claimant did not call the people that paid the money into his account to give evidence of them making these payments of N3,000,000.00 on 17th August, 2009. This is despite the fact that the Defendant is seriously contesting the ownership of the monies. Also the claimant did not tender or produce any bank tellers duly stamped with the official stamp of the bank and properly initialled by the cashier to show on the face of it that the defendant received these monies from these people said to have paid into the account. The onus lies on the Claimant to furnish the Court with cogent proof that these monies were actually paid into his account by the people he claimed.
In comparing his evidence on record at page 118 he said:
I…The owner of the money transferred into my account is my customer who comes to my office to buy US dollars. The name of my customer is Mr John .I know him as Mr John.
Yes the sum of N9Million paid in 3 instalments into my account was paid in by Mr John.
I am not the one who that deposits the money into my account. This Mr John did not make a deposition on oath as my witness, No I did not attach the deposit slip as evidence. When the N9million was in issue I did not state. The branch in which this money was paid into my account I did not issue a receipt when I deal with Golden Ring,. Golden Ring is not a Registered Bureau de change, Kenneth Okeke is not a registered bureau de change, and I am not a licensed money lender.
I have reproduced the extracts of the evidence for clarity purposes; in the light of the Respondent holding fiercely to the investigation report and trails of a fraud perpetuated in their Gbagi branch and the most damaging fact that the account of Golden Rings International Co. Nig. was named to be a recipient of the stolen funds ? see paragraphs 4 ? 6, 8, 15 & 17 of the statement of defence, and pages 40 – 41, 42 – 45 & 46 which Exhibits proof of the fraud in Bank of the record which were front loaded with the process. The relevant paragraphs of the statement of defence are reproduced below:
4. That it is the case of the Defendant that the said N9,000,00 (Nine Million Naira) does not legitimately belong to the Claimant who is amongst those being investigated by the Economic & Financial Crimes Commission EFCC, to ascertain the Claimant?s involvement or otherwise in the commission of the said transferred funds. The Defendant hereby pleads the Claimant?s Statement of Account emphasis on the 17th day of August 2009.
5. The Defendant hereby gives the Claimant notice to produce verifiable proof of the origin of the said transfer/deposit of N9,000,000 (Nine Million Naira) cash on the 17th day of August 2009, and further puts the Claimant to the strictest proof to show that the Defendant acted maliciously and did not believe the truth of the content of its letter to Fidelity Bank plc about the manager?s cheque issued at the request of the Claimant in favour of Romvic Ventures Limited.
6. The Defendant denies paragraph 6 of the Statement of Claim and in response thereof states that it caused a letter dated 18th August 2009 to be addressed to the Manager Fidelity bank Plc, 14 Balogun Street, Lagos in the ordinary course of its business as bankers notifying Fidelity Bank Plc that the Managers Cheque issued from the Claimant?s account with the Defendant in favour of Romvic Ventures Ltd was a stolen manager?s cheque as it was proceeds of a fraudulent transaction and that value will not be given on it.
7. Further to the Defendant?s response in paragraph 8 supra, the Defendant avers that the said letter was a confidential cautionary correspondence issued by banks whenever there is an honest and reasonable belief that a fraudulent transaction has occurred and the proceeds of the said fraud is about to be dissipated, the said letter was addressed to Fidelity bank plc in the Defendant?s performance of a legal and moral duty and in bonafide belief that it was protecting its lawful interest, the said letter was not address to the claimant, or Romvic Ventures Limited. The original of the said letter is in the custody of the rightful addresses, and the claimant is at liberty to summon the recipient for the original to produce same.
8. The Defendant vehemently denies paragraph 7 of the statement of claim and in response thereof states that it did not make any false representation to Fidelity bank Plc, but rather informed Fidelity bank plc of the fact that the proceeds from which the claimant requisitioned the said manager?s cheque was stolen and as such the defendant will not give value to the said manager?s cheque. The Defendant further puts the claimant to the strictest proof to explain the source and justify his ownership of the funds domiciled into his account on the said 17th August 2009 from the Defendant?s account.
15. The Defendant denies paragraph 12 of the statement of claim and conversely states that it merely laid a formal complaint to the Economic & Financial Crimes Commission EFCC and any subsequent action taken by the EFCC in the course of their investigation of the Defendant?s complaint is within the purview of their statutory duty and cannot be ascribed as an act of the defendant.
17. The Defendant denies paragraph 14 and 15 of the statement of claim and states that it did not receive the purported letter dated 7th September 2009, and further avers that the claimant has not been exonerated from any form of complicity or involvement in the said fraud as the case is still being investigated by the EFCC, more so when the claimant has not been able to satisfactorily account for the possession of the proceeds of the said crime in the sum of N9,000,000.00 (Nine Million Naira).
One would have expected the Appellant to go all the way out to prove that the funds in that account were legitimately his. But he woefully fell short of this expectation.
In the recent case of DASUKI V FRN & ORS (2018) LPELR – 43897 (SC) on the burden of proof/onus of proof to wit:
“The law is settled: he who asserts must prove. That is the essence of Section 131(1) of the Evidence Act, 2011. The burden of proof in every suit or proceeding lies on the party who will fail if no evidence at all were given on either side: Section 132 of the Evidence Act.”
The Evidence Act is very clear on this, having failed to prove the ingredients of the action then the defendants defence cannot come into play, from the defence the plea is justification, but the jurisprudence of our law puts it squarely on he who asserts and would fail if no evidence is given.
The issue of criminal proof has not arisen; the allegation of libel must be properly established therefore the evaluation and reasoning of the learned trial judge in the circumstances is unimpeachable. I cannot find any reason to interfere with it.
The Duty of an appellate Court when hearing appeals was spelt out in ATANDA & ORS V AJANI (1989) LPELR ? 589 (SC)
“…an appellate Court is only left with a duty to see: (a) Whether there was evidence to support the findings and/or the decision of the trial Court. (b) Whether the trial Court has made a correct assessment of the evidence before it. (c) Whether the trial Court has wrongly accepted or rejected any evidence tendered at the trial. Or (d) Whether there has been an erroneous appraisal of facts leading to erroneous conclusions in the case. See A. Anyaoke v. Dr. F. Adi (1986) 3 N.W.L.R. 731 at 742,…”
In the light of the above I resolve all the issues in this appeal in favour of the Respondent.
In the circumstances, the appeal fails and it is hereby dismissed. The judgment of the lower Court is hereby affirmed. Costs of N200,000 is awarded in favour of the Respondent.
TOM SHAIBU YAKUBU, J.C.A.: The resolutions of the issues thrown up in this appeal, in the leading judgment, rendered by his Lordship, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA., are in tandem with my thoughts on it.
I too dismiss the appeal as lacking in merits. Hence, the judgment rendered by Oshodi, J., of the Lagos High Court, in re -Suit No: LD/501/2010, on 5th October, 2016 is also affirmed by me.
I abide by the order of award of costs, contained in the leading judgment.
JAMILU YAMMAMA TUKUR, J.C.A.: I read in advance a draft copy of the lead judgment just delivered by my learned brother ABIMBOLA OSARUGUE OBASEKI- ADEJUMO JCA and I agree with the reasoning and conclusion contained therein, adopt the Judgment as mine with nothing further to add.
Appearances:
N. E. Osigwe with him, K. O. OkohFor Appellant(s)
M. E. Esonanjor with him, J. O. OsaroFor Respondent(s)
