UNITED BANK FOR AFRICA PLC v. GODM SHOES INDUSTRIES (NIG.) LTD (2010)

UNITED BANK FOR AFRICA PLC v. GODM SHOES INDUSTRIES (NIG.) LTD

(2010)LCN/4153(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 15th day of December, 2010

CA/E/479/2008

RATIO

PLEADINGS: FUNCTION OF PLEADINGS; WHETHER EVIDENCE ADDUCED IN A CASE MUST SUPPORT THE PLEADINGS

It is settled law that one of the functions of pleadings is to enable parties in the case give a fair notice of the nature of their respective cases to each other; thereby circumscribing and fixing issues in respect of which they are in agreement, and those in respect of which they are not in agreement. The Plaintiff in a case therefore must as a matter of necessity set out clearly the facts to be relied on in the proof of his case; while the Defendant must likewise do the same in offering a challenge to or to disprove the case of the Plaintiff. See AKANINWO V. NSIRIM (2008) All FWLR (Pt. 410) 610. It is also settled law that averments in pleadings are not evidence. Indeed the position of the law is that evidence is not required to be pleaded. Hence it is settled law that averments in pleadings in respect of which evidence is not led or adduced, are deemed abandoned. In other words, evidence adduced in a case must support the pleadings or be in line with the pleadings as a party is expected to give evidence that is within the periphery his pleading and not beyond. Where evidence is adduced beyond a party’s pleading, then the court must ignore such evidence as it must be regarded as going to no issue. See NWOKOROBIA V. NWOGU (2009) All FWLR (Pt. 476) 1868. PER AYOBODE OLUJIMI LOKULO-SODIPE J.C.A

DOCUMENTARY EVIDENCE: WHETHER DOCUMENTARY EVIDENCE IS USED FOR ASSESSING ORAL EVIDENCE

NEGLIGENCE: THE INGREDIENTS OF NEGLIGENCE A PLAINTIFF MUST ESTABLISH TO SUCCEED IN A CLAIM OF NEGLIGENCE

The law is settled as it relates to ingredients of negligence as well as pleading in respect of a claim in negligence. To succeed in a claim of negligence, a plaintiff must establish (a) the existence of a duty of care owed to it by the defendant; (b) failure to attain the standard of care prescribed by law; and (c) damages or injury suffered by the plaintiff as a result of the breach of the duty of care owed it by the defendant. Negligence is a question of fact and not one of law. therefore each case must be decided in the light of the facts pleaded and proved. It is against this backdrop, that a plaintiff in an action for neqliqence. as a matter of law is required to state or give particulars of the negligence alleged and entitled only to recover on the negligence pleaded in the particulars. (Underlining supplied by me for emphasis). Thus it is not sufficient for a plaintiff to make a blanket allegation of negligence against a defendant in a claim for negligence without giving full particulars of the items of negligence relied on as well as the duty of care owed him by the defendant. See DIAMOND BANK LTD V. PARTNERSHIP INVESTMENT CO. LTD 120101 13 WRN 35 (SC); IYERE V. BENDEL FEED AND FLOUR MILL LTD (2009) ALL FWLR (Pt. 453) 1217 (SC); M. O. KANU SONS & CO. LTD v. FIRST BANK OF NIGERIA PLC (2006) 26 NSCQR (pt. II) 999 (SC); and BRITISH AIRWAYS V. ATOYEBI [2010] 14 NWLR (Pt. 1214) 561 (CA). PER AYOBODE OLUJIMI LOKULO-SODIPE J.C.A

CROSS-EXAMINATION: AIM OR OBJECTIVE OF CROSS-EXAMINATION

ADMISSIBILITY: WHETHER EVIDENCE ELICITED OR OBTAINED IN CROSS-EXAMINATION IN RESPECT OF UNPLEADED IS ADMISSIBLE

JUSTICES

MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria

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

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

UNITED BANK FOR AFRICA PLC – Appellant(s)

AND

GODM SHOES INDUSTRIES (NIG.) LTD – Respondent(s)

AYOBODE OLUJIMI LOKULO-SODIPE J.C.A (Delivering the Leading Judgment): This appeal is against the judgment delivered on 10th October, 2005 by Hon. Justice C.E. Iyizoba of the Onitsha Judicial Division of the High Court of Justice, Anambra State (as he then was), in SUIT NO. 0/829/1998 – GODM SHOES INDUSTRIES (NIG.) LTD V. UNITED BANK FOR AFRICA PLC. The learned trial Judge entered judgment for the Plaintiff, i.e. GODM SHOES INDUSTRIES (NIG.) LTD in the sum of N4,500,000.00 being the value of the a draft paid into the Plaintiffs account with the Defendant Bank with interest at the rate of 10% per annum from 16/4/96 until the date of judgment and thereafter at the rate of 5% on the judgment debt from the date of judgment and until the same is entirely liquidated. Costs assessed at N10,000.00 was also awarded in favour of the Plaintiff.

The brief facts of the case as gathered from the Amended Statement of Claim and Further Amended Statement of Defence respectively, of the parties filed before the High Court (hereinafter referred to as “the lower court”) are that the Plaintiff (hereinafter referred to as “the Respondent”) claimed the sum of N4.5 million from the Defendant Bank (hereinafter referred to as “the Appellant”). The said sum is the value of a draft of the Allied Bank Plc, which the Respondent claimed to have paid into its account with the Appellant on 4/4/96. The Respondent alleged that if the Appellant had presented the draft to the Allied Bank Oguta Road, timeously, the same would have been cleared and the value thereof credited into its (i.e. Respondent’s) account within four working days. It is also alleged by the Respondent that the Appellant had a duty of immediately returning its draft by means of an advice slip even if Allied Bank was sent out of the clearing house on 10/4/96 and that the Appellant did not do this. The Respondent alleged that the Appellant on becoming aware that Allied Bank had been sent out of the clearing house ought to have promptly retrieved the draft to enable it (i,e. Respondent) proceed to Abuja (from where the draft was raised) to obtain cash therefore. The Respondent further claimed interest on the value of the draft at the rate of 21% per annum or the prevailing Central Bank of Nigeria interest rate from 16/4/96 until judgment and thereafter at the rate of 5% per annum on the judgment debt. Though the Respondent initially had a claim for N10 million aggravated or exemplary damages, the said claim was later withdrawn and duly struck out by the lower court.

The Appellant did not deny the lodgment by the Respondent of the Allied Bank Plc draft in the sum of N4.5 million into its account with it (i.e. Appellant). The Appellant however claimed that it was on 9/4/96 that the draft was paid in and not 4/4/96 as claimed by the Respondent. The Appellant further claimed that it timeously dealt with the draft paid in by the Respondent by presenting it for clearing on 10/4/96 but that the draft could not be cleared because Allied Bank Plc was sent out of the clearing house on the said 10/4/96. The Appellant in the main denied that it breached any duty of care it owed the Respondent in respect of the draft.

The Respondent called three witnesses in the proof of its case at the lower court; while the Appellant called one witness. The lower court after reviewing and evaluating the evidence adduced by the parties as well as the addresses of their respective counsel, entered judgment in favour of the Respondent in the terms hereinbefore stated.

The Appellant being dissatisfied with the judgment of the lower court lodged an appeal against the same by a Notice of Appeal dated 12/10/2005 and filed on 14/10/2005. The Notice of Appeal contains four grounds of appeal. The grounds of appeal shorn of their respective particulars read thus:

“GROUNDS OF APPEAL

(i) MISDIRECTION:

The Learned Trial Judge misdirected himself by delivering Judgment in favour of the Plaintiff after taking cognisance of the public holidays between the 4th day of April, 1996 and the 10th day of April, 1996 when Allied Bank Plc went out of the Central Bank of Nigeria clearing house.

(ii) MISDIRECTION:

The Learned Trial Judge misdirected himself by holding that the Plaintiff sufficiently proved that it lodged the bank draft with the Defendant on 4/4/96 and thereby resolved the issue as to the date of lodgment of the draft in favour of the Plaintiff.

(iii) ERROR IN LAW:

The Learned Trial Judge erred in law by holding that the particulars set out in paragraph 14 and especially in paragraph 14(a) of the Plaintiffs Amended Statement of Claim dated 7/11/2001 constitutes (sic) sufficient particulars and cover or mean that the Defendant was negligent in not presenting the draft for clearing on 9/4/96 and by holding that the Defendant was negligent in not presenting the draft on 9/4/96 which does not form part of the Plaintiffs case thereby formulated a case for the Plaintiff.

(iv) ERROR IN LAW MISDIRECTION

The Learned Trial Judge misdirected himself by holding that the defendant was negligent in its handling of the matters with respect to the plaintiff’s bank draft after becoming aware that Allied Bank Plc had gone out of clearing and thereby entered judgment in favour of the Plaintiff.”

In compliance with the practice and Rules of this Court, parties duly filed and exchanged Briefs of Argument. Appellant’s Brief of Argument dated 15/10/2009 and filed on 21/10/2009 was settled by Dr. A.J.C. Mogbana; while the Respondent’s Brief of Argument dated 25/11/2009 and filed on the same date was settled by O. R. Ulasi SAN. The appeal was entertained on 7/10/2010 and Dr. A.J.C. Mogbana and A. I. Agbogu of counsel to the Appellant and Respondent respectively, adopted and relied on the Briefs of Argument filed on behalf of their clients as earlier identified above, as their arguments in the appeal.

Two lssues are formulated for the determination of the appeal in the Appellant’s Brief of Argument. The issues are: –

1. Whether the lower court was right in holding that the lodgment of the draft took place on 4/4/96 and that the mandatory period of four working days for clearance ended on 9/4/96, (Grounds 1 and 2)

2. Was the trial Judge correct in holding that the plaintiff (i.e. Respondent) sufficiently pleaded and proved negligence against the Defendant (i.e. Appellant) in its handling of the said draft? (Grounds 3 and 4)

The Respondent equally formulated two issues for the determination of the appeal in its Brief of Argument. The issues read thus:-

“1. Whether the learned trial judge was right in holding that the bank draft was paid in on 4/4/96 and not on 9/4/96?

2. Whether the learned trial judge was right in holding that the appellant was negligent in it’s (sic) handling of the said draft?”

The appeal will be determined upon the issues formulated by the Appellant as they would appear to subsume the issues formulated by the Respondent.

APPELLANT’S ISSUE 1

Dwelling on this issue, the Appellant said to the effect that to all intents and purposes, the Respondent did not establish that its draft was paid in on 4/4/96. This is against the backdrop of the finding of the learned trial Judge that the teller, i.e. Exhibit A tendered by the Respondent was not legible as to the date on which the draft was received by it (Appellant). A fortiori, that the trial Judge was wrong in holding that the Respondent discharged the evidential burden on it as required by Section 137 of the Evidence Act and that it (Appellant) should have led evidence to disprove the fact of the lodgment of the draft on 4/4/96. It is the submission of the Appellant that it is glaring from the averment in paragraph 6 of the amended statement of claim that Exhibit A is secondary evidence and that this accounted for its illegibility. It is also the submission of the Appellant that Exhibit A being secondary evidence was not tendered in the manner stipulated by law and Section 98 of the Evidence Act was referred to in this regard. The Appellant not only said that it is not mandated by Section 98 of the Evidence Act to produce the original teller in court in the absence of a notice to produce the same served on it; but also that the lower court ought to have rejected the Exhibit in evidence. This is because it is inadmissible in the absence of the service on it (Appellant) of a notice to produce the same. That the condition precedent for the admissibility of Exhibit A, which is a piece of secondary evidence, therefore did not exist. The Appellant in the premises submitted that Exhibit A is not helpful to the case of the Respondent.

It is further submitted by the Appellant that the lower court was wrong to have held that the draft should have been cleared on 9/4/96 even if it is assumed that the draft was lodged in on 4/4/96 (which the Appellant did not concede). This is in the light of the averment in paragraph 6 of the further amended statement of defence to the effect that it (Appellant) timeously presented the draft for clearing at the Central Bank. It is the submission of the Appellant that having regard to the applicable banking custom and practice which gives a period of 4 working days for the clearing of bank drafts, and the fact that 5th April 1996 to 8th April, 1996 were public holidays, the period it had to clear the draft had not expired as at 10th April, 1996 when Allied Bank was sent out of the clearing house. The learned trial Judge was accused of having misdirected himself on the facts and in law when he came to the conclusion that the Appellant ought to have cleared the draft on 9/4/1996 having regard to the facts and circumstances of the case, The Appellant urged the Court to resolve Issue 1 in its favour.

Dwelling on the issue as it relates to Exhibit A, i.e. the teller issued by the Appellant, the Respondent referred to paragraph 6 of the amended statement of claim as showing that it was the Respondent’s own copy of the teller evidencing the lodgment of the draft on 4/4/96 that it pleaded to rely on. That it was the pleaded teller that was tendered through PW2 and duly admitted by the lower court in evidence without objection from the Appellant as Exhibit A. That in the circumstances of this case, what it (i.e. Appellant) ought to tender was the copy of the teller in its possession and that the said teller having been tendered without objection and admitted as Exhibit A, the lower court was right to have acted on it as it was relevant and admissible.

Referring to the response of the Appellant as it relates to the teller in paragraph 5 of the Appellant’s further amended statement of defence; the Respondent submitted that the Appellant did not show by any cogent evidence that Exhibit A was paid in on 9/4/1996. This is against the backdrop of the facts that the Appellant failed to establish that its workers were on strike on 4/4/1996 and the failure to produce any documentary evidence as to the lodgment of Exhibit A on 9/4/1996 as pleaded by it. Indeed the Respondent submitted that the failure of the Appellant to tender documentary evidence as to the date of lodgment of Exhibit A being 9/4/1996 as pleaded by it amounted to an abandonment of that aspect of the Appellant’s pleading. The case of Nwanji v. Coastal Services (Nig.) Ltd (2004) 11 NWLR (Pt.885) 578 was cited in aid.

Dwelling on the submission of the Appellant that Exhibit A is secondary evidence and inadmissible in the absence of the service on the Appellant of notice to produce the original, the Respondent submitted that the Appellant’s submission was faulty and pathetically unreasonable against the backdrop that Exhibit A was admitted without objection. It is also the submission of the Respondent that Exhibit A in any event is not secondary evidence and does not fall within the classes of documents in Section 98 of the Evidence Act. The Respondent submitted that Exhibit A is primary evidence having been executed in several parts with the Respondent retaining its own copy and section 94(2) of the Evidence Act was cited in aid. Though not conceding that it is required to serve a notice to produce on the Appellant, the Respondent also submitted to the effect that it was relieved of serving the Appellant such notice in respect of Exhibit A by virtue of the proviso to section 98 of the Evidence Act given the nature of this case. This is particularly so as the Appellant pleaded that it would rely on documentary proof that draft to which Exhibit A relates was paid in on 9/4/1996 in response to the Respondent’s pleading that it paid in the said draft on 4/4/1996. The Respondent in the circumstances submitted that section 149(d) of the Evidence Act applied against the Appellant given its failure to tender its copy of Exhibit A as it pleaded. The Respondent submitted that given the documentary evidence proffered by it to establish that it paid in the draft to which Exhibit A relates on 4/4/1996 vis-a-vis the oral evidence adduced by the Appellant, it was its (i.e. Respondent’s) evidence that is to be preferred on the issue and the case of Udeorah v. Nwakonobi (2003)4 NWLR (Pt.811) 643 was cited in aid. The Court was urged to resolve the issue in favour of the Respondent.

The fact of the payment of the Respondent’s Allied Bank Plc draft into the Respondent’s account with the Appellant is pleaded in paragraph 6 of the amended statement of claim. The averment in question reads thus:-

Paragraph 6

On 4/4/96, the plaintiff paid in the said draft No. D/D KAT M662198 into its current account with the defendant’s Onitsha Main Branch which transaction was duly recorded and signed by the defendant’s staff in a bank teller, a copy whereof the plaintiff has in its possession. Reliance will be placed on the plaintiffs own copy of the bank teller.”

PW2 gave evidence concerning the lodgment of the draft. At page 63 of the record of appeal, he testified thus: –

“On 4/4/96, we paid the said draft into the current account with the defendant’s Onitsha Main branch the transaction was duly recorded and signed by the bank cashier on a bank teller a copy of which is in our possession. This is our copy.

Ulasi – I seek to tender our copy.

Mebo – No objection.

Court – Admitted and marked Exhibit A.”

Dwelling on the lodgment of the draft in its further amended statement of defence, the Appellant pleaded in paragraph 5 thus: –

“Save and except that the said draft was paid in on 4/4/96 the Defendant admits paragraph 6 of the Statement of Claim. In answer thereto the Defendant states that the said draft was lodge (sic) on 9/4/96 and presented to the Local Bank clearing on 10/4/96.

Documentary proof will be founded upon. ……………”

The sole witness called by the Appellant in the proof of its case testified as DW1. The witness, i.e. DW1, dwelling on the draft paid in by the Respondent in his evidence-in-chief testified at pages 72 -73 of the record of appeal thus:

“On 4/4/96, the defendant had nothing to do with the plaintiff with respect to the plaintiffs account. On 9/4/96, the plaintiff lodged a draft of Allied bank into his current account with us. We presented the cheque at the local clearing Onitsha and obtained an instrument in favour of UBA PLC for the credit of the customer’s account when cleared at the CBN Enugu. The draft was presented at the Local Clearing on 10/4/96. On the same 10/4/96 the cheque was taken to CBN Enugu for clearing. We were reliably informed that the paying bank Allied Bank Plc had been sent out of the clearing house.

On 4/4/96, the Staff of UBA PLC were on industrial action. Workers resumed duty fully on Tuesday 9-4-96. The plaintiffs draft could not have been lodged on 4/4/96 as all the staff (sic) on strike. On 5/4/96, 6/4/96, 7/4/96 and 8/4/96, the bank did not work. 5/4/96 was Good Friday, a Public Holiday.614196 was a Saturday, a non-working day. 7/4/96 was Easter Sunday, a Public Holiday, 8/4/96 was Easter Monday, also a Public Holiday. lf the plaintiff had actually paid in the cheque on 4/4/96 as they claimed, it would take 4 working days for the cheque to clear i.e. Friday April 12.

We obtained a certified true copy of a Register of the clearing house of the CBN on 10/4/96 as evidence that Allied Bank was sent out of the clearing house on that day.

If seen I can recognise the document, this is the document.

Mebo: I seek to tender it as Exhibit,

Ulasi: No Objection.

Court: Certified true copy admitted in evidence and marked Exhibit L.”

During cross-examination on 11/5/2005, DW1 was questioned in relation to the date of lodgment of the draft. He testified at pages 75 – 76 of the record of appeal to the effect that he could not remember the date the workers of UBA PLC Onitsha Main Branch began their strike. He also testified to the effect that as at 4/4/96 he was working at UBA PLC Kaduna Branch, and that it was only on 14/12/2004 that he joined the UBA PLC, Onitsha Main Branch. It was also the evidence of the witness under cross-examination that a customer who pays in a draft at the counter is given a slip showing what he has paid in. When asked whether he could show the Appellant’s copy of the slip showing that the Respondent’s draft was paid in on 9/4/96 and not 4/4/96 as claimed by PW2, DW1 said to the effect that he did not have it in court. The cross-examination of DW1 continued on 17/5/2005. Again when the witness was asked whether he had the Appellant’s copy of the slip showing that the Respondent’s draft was paid in on 9-4-96 and not 4/4/96, DW1 answered in the negative. (See page 77 of the record of appeal).

Before now, I have said that it is the facts pleaded by a party that invariably donate the nature or type of evidence to be adduced in the proof of the party’s case, And that where the proper nature or type of evidence is adduced, and there is nothing that renders the same inadmissible in law, then such evidence is worthy of consideration by the court. Given the averment in paragraph 6 of the Respondent’s amended statement of claim which has been reproduced hereinbefore, it is my considered view that the documentary evidence the Respondent relied on in the proof of the lodgment of the draft into its account with the Appellant on 4/4/96, is the copy of the teller given to it by the Appellant’s cashier, in evidence of the transaction. This was what the Respondent tendered through PW2 and which was duly admitted in evidence without objection from the Appellant and marked Exhibit A.

What the Respondent pleaded that it will rely on, in respect of the lodgment it made on 4/4/96, is its own copy of the teller signed by the Appellant’s staff evidencing the transaction and which is in its possession. The Respondent’s copy of teller in the circumstance is the primary evidence of the document pleaded. This is so despite the use of the word “copy”. It has not been shown or even suggested by the Appellant that the Respondent’s copy of teller admitted as Exhibit A, is a copy made from a copy. See Sections 93 and 94(1) of the Evidence Act Cap. 112 LFN, 1990 which provide: –

“Section 93 – The contents of documents may be proved either by Primary or secondary evidence.

Section 94(1)- Primary evidence means the document itself produced for the inspection of the court.

It is only if the Respondent had sought to tender a teller different from the actual one given to it by the Appellant, in evidence of the transaction (such as a photocopy of such a teller), that the issue of secondary evidence would have arisen and consequently the need to lay some foundation before tendering such a teller different from the actual one given to it by the Appellant, in evidence of the transaction. Even at this, it would be preposterous to expect the Respondent to give the Appellant notice to produce the copy of the teller which was hitherto in the Respondent’s possession. This is because it is not the teller in the possession of the Appellant the Respondent pleaded it will rely upon.

In the light of the above, I am of the considered view that the submission of the Respondent that the document admitted and marked as Exhibit A does not fall within the classes of documents to which Section 98 of the Evidence Act applies; is unassailable. The document admitted and marked as Exhibit A it should be noted was so admitted without objection from the Appellant. The law is settled that neither a trial court nor the parties have the power to admit without objection a document that is in no way or under any circumstance admissible in law. See BROSSETTE MANUFACTURING NIG. LTD V. M/S OLA ILEMOBOLA LTD (2007) All FWLR (ft. 379) 1340 at 1378. It is however also a cardinal rule of evidence and practice in civil as well as criminal cases, that an objection to the admissibility of a document sought to be tendered by a party in evidence is taken when the document is sought to be tendered. That barring some circumstances where by law, certain documents are rendered inadmissible (consent or no consent of the parties notwithstanding), for failing to satisfy some conditions or meet certain criteria, the rule remains inviolate that where objection has not been raised by the opposing party to the reception in evidence of a document or other evidence, the document will be admitted in evidence and the opposing party cannot afterwards be heard to complain about its admission. See EZOMO V. NEW NIGERIA BANK PLC (2007) All FWLR (Pt.368) 1032 at 1065. It would appear glaring from the averment in paragraph 6 of the Respondent’s amended statement of claim that it was sufficiently disclosed that it would at the trial rely on the copy of the teller given to it by the Appellant in evidence of the lodgment of the draft on 4/4/96. The Appellant itself equally sufficiently disclosed by the averment in paragraph 5 of its further amended statement of defence that it will rely on documentary evidence relating to the lodgment of the draft on 9/4/96 and its presentation to the Local Bank clearing on 10/4/96. It is therefore obvious from the nature of the case as it relates to the question of lodgment and payment of the Respondent’s draft, that Appellant ought to have known that it will be required to produce its own copy of the teller which it claims to be the original (though this is not conceded) at the trial of the case. This is particularly so as the Appellant itself pleaded its reliance on documentary evidence as it concerned the teller. The copy of the teller tendered by the Respondent as Exhibit A in the circumstances of this case vis-a-vis the provisions of Section 98 of the Evidence Act cannot be said to be a document that is rendered inadmissible in evidence by law. The Appellant having not objected to the admissibility of the said document at the stage it was being tendered but rather consented to its admission in evidence cannot now be heard to complain about the admission of the said document – Exhibit A. Exhibit A is therefore an admissible piece of documentary evidence upon which the lower court was entitled to act.

The lower court in its judgment duly evaluated the evidence adduced by the parties on the question of the date of the lodgment of the draft into the account of the Respondent on 4/4/96 as pleaded by the said Respondent or on 9/4/96 as pleaded by the Appellant. The lower court found the Respondent to have discharged the evidential burden of proof imposed on it by section 137(1) of the Evidence Act and that the Appellant did not discharge the burden on it as required by section 137(2) and consequently held that the Respondent’s draft was paid into its account with the Appellant on 4/4/96.

The lower court in holding that the draft was paid in on 4/4/96 also invoked the provision of Section 149(d) of the Evidence Act against the Appellant.

It is obvious from the evidence of the parties on record, that the Respondent adduced oral evidence in line with the averment in paragraph 6 of its amended statement of claim. It also tendered documentary evidence – Exhibit A in support or in proof of the averment. The Appellant on the other hand adduced oral evidence in support of its averment in paragraph 5 of the further amended statement of defence. It however never tendered the documentary evidence it pleaded it would rely upon in establishing that the Respondent’s draft was paid into its account on 9/4/96 and not 4/4/96 as claimed by the Respondent. It would appear indisputable from the pleading of the Appellant that it never challenged the authenticity of the teller pleaded by the Respondent. Cross-examination of PW2 in relation to Exhibit A gave credence to the said Exhibit. This is because PW2 upon being confronted with the Exhibit and questioned as to the date on the official stamp of the Appellant thereon stated this to be 4/4/96. Also PW2 having stated to the effect that it is not only the Appellant’s staff that can state the date the transaction was entered in their official register, was never confronted with any such register showing the date the transaction was carried out to be different from 4/4/96 as testified to by the witness.

It is settled law that documentary evidence is a veritable aid for assessing oral evidence. See CIVIL DESIGN CONSTRUCTION NIG. LTD V. SCOA NIGERIA LTD (2007) NSCQR 29 (pt.II) 1307 (SC); and ESSIEN ETUKUDO (2009) All FWLR (Pt. 496) 1886 at 1904 (C.A). The lower court in its judgment disbelieved the ipse dixit of DW1 that the workers of the Appellant at the Onitsha Main Branch were on strike from 4/4/96 to 9/4/96. There is no appeal against this finding of the lower court. Given the situation where the Respondent led evidence in line with the averment that it paid in its draft into its account with the Appellant on 4/4/96 and Exhibit A tendered in the establishment of the averment vis-a-vis the failure of the Appellant to furnish any documentary evidence as pleaded by it, in support of the averment that it was on 9/4/96 that the said draft was paid in, I simply do not see how it can be seriously contended that the Respondent did not discharge the evidential burden on it. After all the best way of proving payment of money into a bank account is by production of a bank teller or an acknowledgment showing on its face that the bank has received the payment. See SALEH V. BANK OF THE NORTH LTD (2006) 25 NSCQR 582. I am of the considered view that the same holds true in respect of a draft as in the instant case. The Respondent having regard to the evidence on record glaringly discharged the evidential burden on it as it relates to the date it paid in the draft being 4/4/96; while the Appellant on the other hand woefully failed to discharge the burden on it to establish the contrary by the ipse dixit of DW1 that the draft was paid in on 9/4/96. Where a party adduces evidence that go to show the existence of a document in proof of his case, the document should be tendered. See ABUBAKAR v. WAZIRI (2008) All FWLR (pt.436) 2025 at 2047. Pursuant to the provision of section 149(d) of the Evidence Act, evidence which could be produced but is not produced is presumed to be against the interest of the party withholding the same. See CHEMIRON INT’L LTD V. EGBUJUONUMA (2007) ALL FWLR (Pt.395) 444. The learned trial Judge in the face of the failure of the Appellant to produce the documentary evidence it pleaded reliance upon in establishing that it was on 9/4/96 the Respondent paid in its draft, was very correct in invoking the provision of Section 149(d) of the Evidence Act against the Appellant.

In the light of the evidence adduced by the parties in relation to the date the Respondent’s draft was paid into the Respondent’s account with the Appellant, I find the learned trial Judge to be eminently correct in holding that the draft was paid in on 4/4/96, The aspect of Appellant’s issue 1 which questions the correctness of the holding/finding of the learned trial Judge that the draft was paid in on 4/4/96 is therefore resolved against the Appellant.

The second aspect of Appellant’s issue 1, relates to whether or not the mandatory period of four working days for the clearance of the draft ended on 9/4/96.

The averment in paragraph 7 of the Respondent’s amended statement of claim relates to the time within which the draft it paid in on 4/4/96 should have been cleared. The averment reads thus: –

“Evidence will be led to show that in the ordinary course of banking business, the said draft, if it had been presented to Allied Bank Oguta Road Branch timeously as required by the defendant, would have been cleared and the effect thereof credited to the plaintiffs account within four working days of its presentation.”

It would appear incontrovertible from the averment reproduced above, that it is not the case of the Respondent that the draft it paid in on 4/4/96, ought to have been presented for clearing on a specific date from the date it was paid in or that it must be cleared by or on a specific date from the date of its lodgment. The Respondent’s case is that the said draft ought to have been cleared within a specified period (i.e. 4 working days) from the date of its lodgment into its account.

The learned trial Judge in his judgment clearly accepted that 4/4/96 was the Thursday preceding Good Friday of that year and that 5th, 6th, 7th and 8th April, 1996 being Good Friday; Saturday; Easter Sunday and Easter Monday respectively, were non-working days. It is glaring from the record that both sides (i.e. Respondent and Appellant) adduced evidence that went to show that the period for the clearing of a draft in a situation where there is a local clearing house in the location where the transaction takes place is four working days. The fact as to whether or not the Appellant acted timeously in relation to the clearing of the Respondent’s draft in the light of the averment reproduced above, and the evidence before the lower court on the issue, therefore must be determined having regard to the date of the lodgment of the draft into the Respondent’s account with the Appellant vis-a-vis the period of 4 working days which the Appellant had to present and get the draft cleared.

Before now, I have found the lower court to be eminently correct in holding that the draft was paid in on 4/4/96. Given the undisputed fact that the next working day after the draft was paid in on 4/4/96 was 9/4/96, it is my considered opinion that the 4 working days the Appellant had within which to present the draft paid in by the Respondent, for clearing and complete the clearing formalities of the said draft, if it acted timeously, commenced on 9/4/96 and would have ended on 12/4/96.

In the judgment, the learned trial Judge stated that there was no dispute on the fact that the draft was not given value because Allied Bank was sent out of the clearing house on 10/4/96. Apparently acting on the fact that the 5th to 8th of April, 1996 were non-working days, the learned trial Judge said thus: –

“Quite clearly, therefore, from the evidence of both parties the bank draft paid in on 4/4/96 should have gone for clearing the next business day being 9/4/96. By 9/4/96 Allied Bank was not out of the clearing house and the transaction would have gone through.”

Again, I cannot but say that the case of the Respondent in relation to the giving of credit or value to the draft it paid in on 4/4/96, was never that the draft ought to have been sent for clearing on a specific date to wit: 9/4/96. What the Respondent averred was that it would adduce evidence to show that in the ordinary course of banking business, the draft if it had been presented to Allied Bank timeously, would have been credited to the Respondent’s account within 4 working days of its presentation. Now what evidence did the Respondent adduce to show that the draft was not presented timeously, and that this resulted in the non-crediting of its (i.e. Respondent’s) account within 4 working days of the presentation of the draft. The evidence in this regard as it can be discerned from the record of appeal is simply the facts of the payment of the draft by the Respondent into its account on 4/4/96; the non-return of the draft to the Respondent as an uncleared effect and the non-crediting of its account with the value of the draft.

It is clear from the averment of the Respondent in paragraph 7 of the amended statement of claim hereinbefore reproduced that it never pleaded that the draft ought to have been sent for clearing on 9/4/96 and that the transaction would have gone through had this been done. The learned trial Judge in my considered view also rightly held that the issue of replacement or settlement draft (which undoubtedly is one of the steps to be taken in clearing the paid in draft as pleaded by the Appellant) was never pleaded by the Respondent and that no evidence was led in respect of the same. I am of the considered view in the light of the pleading of the Respondent and the finding concerning the non-pleading by the Respondent of the fact of settlement or replacement draft, that the learned trial Judge clearly erred in holding that the draft ought to have been cleared on 9/4/96 in the face of the undisputed and clear evidence before him that a draft has 4 working days within which it is to be cleared; and the fact that 5th to 8th April, 1996 were non-working days. The Appellant had the period 9th April, 1996 to 12th April, 1996 within which to present the draft paid in by the Respondent on 4/4/96 for clearing and to credit the account of the Respondent with the value of the draft. There is no averment in the amended statement of claim of the Respondent fixing the date on which the Appellant should have acted in relation to the draft as 9/4/96. In the circumstances I find the learned trial Judge to be wrong in holding that the draft should have been cleared on 4/4/96.

In the light of all that has been said above, the second part of Appellant’s issue 1 is accordingly resolved in its favour.

APPELLANT’S ISSUE 2

Dwelling on this issue the Appellant stated the facts relied upon by the Respondent in respect of the negligence alleged on its (i.e. Appellant) part to be as pleaded in paragraph 14(a) and (b) of the amended statement of claim and these are (i) that the Appellant had sufficient time recognised by banking custom to have effected the clearance and payment of the draft from 4/4/96 when the said draft was paid into the Respondent’s account with the Appellant and (ii) that the Appellant having become aware that Allied Bank was out of the clearing house ought to have promptly retrieved the draft to enable the Respondent proceed to Abuja to obtain cash in exchange thereof.

The Appellant submitted that the Respondent failed to give the facts of or to have sufficiently pleaded the banking custom which provides for the period of clearing and payment of cheques as required by Section 14 of the Evidence Act. It is the submission of the Appellant that the learned trial Judge was wrong in holding that paragraph 14(a) of the amended statement of claim is sufficient pleading and gives adequate particulars of negligence to cover all dates after 4/4/96 and including 9/4/96. It is the further submission of the Appellant that the Respondent having failed to give sufficient facts of the banking custom it relied on and lead evidence in the proof of the same, a foftiori, the Respondent failed to prove that it (Appellant) was negligent in complying with the alleged custom. The Appellant also submitted that the Respondent failed to prove that it committed a breach of the duty of care owed the Respondent under the custom relied upon and that the breach of the said duty resulted in damages and losses to the Respondent. Section 217 of the Torts Law (Cap.140), Laws of Anambra State 1991 was referred to as setting out the elements of negligence to be (i) the existence of a duty of care; (b) a breach of that duty; and (c) resultant damages to the Respondent.

The Appellant stated the crux of the Respondent’s case in relation to negligence, to be that Allied Bank issued a settlement draft to the Appellant on 9/4/96 and that if the replacement draft had been presented to the Central Bank of Nigeria Enugu Branch, on the same 9/4/96, the transaction would have gone through as Allied Bank had not been sent out of the clearing house by that date i.e. 9/4/96. lt is the submission of the Appellant that the learned trial Judge ought not to have invoked the presumption under Section 149(d) of the Evidence Act against it (i.e. Appellant) for the non-tendering of the replacement draft given the observation he made that the facts in relation to replacement draft were not pleaded and that no evidence was led in relation to the same. It is the submission of the Appellant that the fact elicited by the Respondent in relation to the replacement draft under cross-examination could not be relied upon given the pleading of the Respondent.

The cases of Gagaru v. Pashiru [2006] 1 NWLR (Pt. 962) 521 at 540 per Tsamiya, JCA; and Total Nigeria Ltd v Nwako (1978) 5 SC 21 amongst others were cited in aid.

It is also the submission of the Appellant that the Respondent did not make failure of the Appellant to give the Respondent and the drawee notice of dishonour of the draft the main plank of its (i.e. Respondent’s) claim in negligence anywhere in its pleading. In the circumstances the Appellant submitted that the Respondent’s evidence and invocation of Sections 48 and 49 of the Bills of Exchange Act do not avail the Respondent. It is also the submission of the Appellant that the Respondent had waived its right to rely on failure to give notice of dishonour even if the Respondent predicated its claim in negligence on such failure (which is not conceded). Section 50(2) of the Bills of Exchange Act was relied upon in aid of the submission. The Appellant stated the conduct of the Respondent constituting waiver to be, that about two weeks after the draft was paid in, the Respondent received a negative answer when it inquired as to whether or not the draft had been cleared and the reason for this was that Allied Bank had gone out of the clearing house at Enugu. Furthermore that in a subsequent communication dated 27/5/96, the Respondent was also advised to be patient for Allied Bank to return to the clearing house and the Respondent waited until March, 1997 when it demanded that the draft be retrieved from Allied Bank and by which time NDIC had taken over Allied Bank. The case of Bank of the North Ltd v. Yau [2001] 10 NWLR (Pt.721) 408 at 434 was cited in aid of the submission relating to wavier.

Again the Appellant submitted that the allegation of the Respondent that it (i.e, Appellant) should have promptly retrieved the draft when it discovered that Allied Bank had been barred from the clearing house to enable it collect cash in exchange is simply an afterthought. This is because it is unimaginable that a Bank which could not meet its financial obligations in the clearing house would have been able to pay cash across the counter. This the Appellant said is not negatived by the fact that Allied Bank was officially still in business and was receiving small sums of money like N250,000.00 from its customers. The Appellant stated that the real question is whether Allied Bank could have paid N4.5 million as at the time. The Appellant answered the question in the negative and submitted that the reasonable course of action opened to the Respondent was to have submitted its claims as a creditor of the Bank (i.e. Allied Bank) to NDIC which was invited by the Central Bank to manage the said Allied Bank and not for the Respondent (which was fully aware that Allied Bank was a failing Bank) to have waited to see if the fortunes might improve. It is also the submission of the Appellant that as collecting Bank, it has no duty to retrieve the draft which got trapped in the process of clearing. The case of Bank of the North (supra) was again referred to. The Court was urged to resolve this issue in favour of the Appellant.

Dwelling on the issue, the Respondent submitted that the duty of care the Appellant owed it is specifically created by statute. The Respondent said the Appellant owed it a duty of care to take all necessary steps to ensure that the draft was given value. That this duty included an obligation on the part of the Appellant to notify Allied Bank PLC that the instrument that Bank gave it (i.e. Appellant) was dishonored by non-payment at the Central Bank of Nigeria, Enugu. Sections 48 and 49 of the Bills of Exchange Act Cap. 35 LFN 1990 was relied upon. The Respondent submitted that in the circumstance when the replacement draft was presented at the Central Bank, Enugu, and not honoured, the Appellant ought to have given notice the dishonour to the Allied Bank; and that the notice of dishonour ought to have reached the Allied Bank latest on 11/4/1996. Against the backdrop of this, the Court was urged to uphold the view expressed by the learned trial Judge that the Appellant was negligent in its handling of the draft. Dwelling on the submission of the Appellant that the Respondent waived its right to rely on the Bill of Exchange Act, the Respondent submitted that the question of waiver was not canvassed by the Appellant at the lower court and that the Appellant cannot now do this on appeal. It is also the submission of the Respondent that in any event it never waived its right to rely on the protection offered by the Bill of Exchange Act having regard to the circumstances of the case. Dwelling on the submission of the Appellant that the real question is whether Allied Bank could have paid N4.5 million over the counter at the material time, the Respondent submitted that the submission of the Appellant in this regard is bereft of any seriousness. That it was sufficient that Allied Bank continued to function months after it was sent out of clearing house. That the Appellant’s duty was not to poke nose into whether or not Allied Bank had N4.5 million. That the Appellant’s duty as clearly stated by law was to inform both Allied Bank and it (i.e. Respondent) of the situation and this, the Appellant failed to do. The Respondent urged that issue 2 be resolved in its favour.

Dwelling on the issue of negligence in the judgment, the learned trial Judge expressed the view that the averment in paragraph 14(a) of the amended statement of claim is sufficient pleading and gives adequate particulars of negligence to cover all dates after 4/4/96 inclusive of 9/4/96.

It is indeed obvious from the perusal of the amended statement of claim, that some particulars of negligence were specifically set out in paragraph 14 thereof. The paragraph reads thus:-

Paragraph 14

The plaintiff will contend that at all events, the defendant was negligent in its duty of care of presenting and ensuring payment of the plaintiffs draft by Allied Bank.

Particulars of Negligence

(a) From 4/4/96 when the draft was paid into the plaintiffs account with the defendant, there was sufficient time recognised by banking custom for the defendant to have effected clearance and payment of the draft.

(b) Having become aware that Allied Bank was out of the Clearing House, the defendant ought to have promptly retrieved that draft to enable the plaintiff proceed to Abuja to obtain Cash in exchange thereof.

(c) With respect to who has possession of the plaintiffs draft, the defendant’s letters dated 27/5/96 and 4/12/97 are mutually contradictory.

(d) A bank of the stature and standing of the defendant ought to be conversant with the vagaries and fortunes of the banking business. It ought reasonably to know that Allied Bank was in trouble and to advise its customers appropriately.”

I however do not believe that it is only in paragraph 14 reproduced above, that the Respondent pleaded facts concerning the alleged negligence of the Appellant in relation to the draft it (i.e. Respondent) paid into its account with the Appellant on 4/4/96. Amongst other paragraphs in this regard is the averment in paragraph 16(b) of the amended statement of claim which reads thus: –

“In answer to paragraph 5 (a) of the further amended statement of defence, the plaintiff by U.B.A. Onitsha Main Branch cheque No. 00135611 paid the sum of N253,096.84 on 12/4/96 to Allied Bank. The transaction went through and plaintiffs account debited. Reliance will be placed on Allied Bank Teller of 12/4/96 as well as statement of account for April 1996. Even if Allied Bank went out of clearing on 10/4/96, the defendant had a duty of immediately returning the plaintiffs draft by means of advice slip which was not done. It is not banking policy that a customer will authorize his banker to return an uncleared instrument or indemnify his banker before the return of such instrument.”

(Underlining supplied by me for emphasis)

The law is settled as it relates to ingredients of negligence as well as pleading in respect of a claim in negligence. To succeed in a claim of negligence, a plaintiff must establish (a) the existence of a duty of care owed to it by the defendant; (b) failure to attain the standard of care prescribed by law; and (c) damages or injury suffered by the plaintiff as a result of the breach of the duty of care owed it by the defendant. Negligence is a question of fact and not one of law. therefore each case must be decided in the light of the facts pleaded and proved. It is against this backdrop, that a plaintiff in an action for neqliqence. as a matter of law is required to state or give particulars of the negligence alleged and entitled only to recover on the negligence pleaded in the particulars. (Underlining supplied by me for emphasis). Thus it is not sufficient for a plaintiff to make a blanket allegation of negligence against a defendant in a claim for negligence without giving full particulars of the items of negligence relied on as well as the duty of care owed him by the defendant. See DIAMOND BANK LTD V. PARTNERSHIP INVESTMENT CO. LTD [2010] 13 WRN 35 (SC); IYERE V. BENDEL FEED AND FLOUR MILL LTD (2009) ALL FWLR (Pt. 453) 1217 (SC); M. O. KANU SONS & CO. LTD v. FIRST BANK OF NIGERIA PLC (2006) 26 NSCQR (pt. II) 999 (SC); and BRITISH AIRWAYS V. ATOYEBI [2010] 14 NWLR (Pt. 1214) 561 (CA).

The Appellant submitted that the Respondent not only did not give sufficient facts of the banking custom which provides for the period for the clearing and payment of cheques, but also failed to lead evidence in proof of the said custom. This being the position, the Appellant further submitted that Respondent as of necessity failed to prove that it (i.e. Appellant) was negligent in complying with the alleged custom.

I cannot but observe that the Appellant in making the above submission under its Issue 2 clearly overlooked its earlier submissions under its Issue 1 at paragraphs 4.6 and 4.7 on page 5 of its Brief of Argument. The submissions read: –

Paragraph 4.6

………………………………………..

If the plaintiff actually paid in the draft on 4/4/96, as claimed the next working day was 9/4/96 and counting from that date four working days when the draft was expected to clear would expire on Friday, 1214196 (Pages 9,72 & 74 of the Record) PW1 confirmed the banking custom and practice that the defendant had up to 4 working days to clear the draft (Pages 58 and 59 of the Record) .

Paragraph 4.7

It is our contention, therefore. that, having regard to applicable banking custom and practice, the period allowable for clearing the bank draft had not expired when the issuing bank, Allied Bank, was sent out of the clearing house. The draft could not be cleared on 10/4/96, the date the defendant took the instrument to CBN in Enuqu for clearing within the permissible 4 working days…”

(Underlining supplied by me for emphasis).

It would also appear that the Appellant in making the submission that the Respondent failed to give facts or sufficiently plead the banking custom which provides for the period for clearing and payment of cheques, conveniently and comfortably ignored or chose to overlook the averment in paragraph 7 of the amended statement of claim which has been hereinbefore reproduced and the evidence of PW1 that dealt with the said averment as well as the evidence of DW1 that went to confirm the banking custom that the period provided for the clearing of a cheque and draft is four working days from the date of lodgment into a customer’s account. The evidence of PW1 in this regard at pages 58 – 59 of the record of appeal goes thus:-

“When a customer pays in a cheque or draft inot (sic) his account he fills in a deposit slip which the bank stamps on and dates. After that they do their banking entries in preparation for sending the cheque for clearing the following business day. If the collecting bank is located in a town where there is C.B.N. branch, the cheque will be lodged into CBN Clearing house where clearing transaction between banks take place. But if the collecting bank is outside a town where there is CBN branch such as in Onitsha have (sic) the cheque is sent into the local clearing house and in Onitsha here. (sic) First Bank New Market Road is the clearing house for Onitsha banks. In such clearing centres banks exchange clearing instruments in form of cheques and draft among themselves. On getting back to their branches, they process the cheques and drafts for payment. For any cheque or draft where there is sufficient fund or an existing arrangement to facilitate (sic) payment, the paying bank issues a settlement draft in the name of the collecting bank. These settlement instruments are sent back to the clearing centre or clearing house and handed back to the collecting banker for such instrument.

Once a settlement instrument (sic) draft is issued, the original cheques is assumed paid. This process must be completed within four working days.

After four working days and the paying bank fails to return the original cheque back to the collecting banker that cheque is assumed paid and the credit goes to the depositing customer. Where a customer’s cheque goes for clearing and it turns out that the bank in which the cheque is drawn is out of the clearing house, the collecting bank should return the instrument to the customer with reason. (sic) “Paying bank out of Clearing” specified on the face of the cheque. It is not necessary that the collecting bank demands a written indemnity from the customer before the cheque is returned to him. There is no such practice in banking.

There is a difference between a bank draft and an ordinary cheque with regards to clearing. A bank draft is as good as cash because an account must have been debited (sic) before the draft is prepared.”

The banking custom which the Respondent glaringly and clearly pleaded and which it duly adduced evidence in aid of, is to the effect that an instrument such as the draft as in this case, must be presented for clearing and credited into the account of the paying customer within four working days of its being paid into the customer’s account. In apparent support of the averment in paragraph 16(b) of the amended statement of claim, the Respondent through PW1 also adduced evidence to the effect that where a cheque goes for clearing and it turns out that the Bank on which the cheque is drawn is out of the clearing house, the Bank into which the cheque is paid, must return the same to the depositing customer with the reason “paying Bank out of clearing” endorsed on its face. The evidence adduced by the Respondent in aid of the custom was never challenged by the Appellant under cross-examination. Neither did the Appellant adduce any evidence to controvert the evidence adduced by the Respondent in that regard, despite the averment in paragraph 6 of the further amended statement of defence. In this regard it is to be noted that in paragraph 6 of the further amended statement of defence the Appellant averred to the effect that a draft clears within the time stipulated by the central Bank guideline but neither adduced evidence in this regard nor tendered any guideline showing the stipulated time by the central Bank to be different from the period of four working days as testified to by PW1. Furthermore, the Appellant through DW1 under cross-examination impliedly agreed that the Respondent’s draft ordinarily ought to have been returned to it. In this regard DW1 in answer to the question as to whether the Appellant collected from Allied Bank the original draft to enable the Respondent recover his money from Abuja, said thus: –

“We did not return the original draft for the following reasons:

An abnormal situation had set in by Allied Bank being sent out of the clearing house at CBN”

The Appellant by failing to adduce evidence in support of the averment in paragraph 6 of its further amended statement of defence clearly abandoned the same. See (NIG.) LTD 120071 All FWLR (Pt.383) 1; and PUROSARO V. AYORINDE (2005) 21 NSCQR 701. In the face of the Respondent’s pleading concerning the period within which a draft, as in the instant case, has to be presented for clearing and value given thereto; and the unchallenged and uncontroverted evidence adduced in aid of the same, the lower court was duty bound to act on the evidence that the draft paid in by the Respondent on 4-4-96 ought to have been presented for clearing and value given to it within four working days of its being paid in by the Respondent. See ADIM V. NIGERIAN BOTTLING CO. LTD (2010) ALL FWLR (Pt.527) 690; UNIBIZ NIG LTD V. COMMERCIAL BANK CREDIT LYONNAIS LTD (2005) 22 NSCQR 57; and PLATEAU V. A-.G NASARAWA (2005) 22 NSCQR 193.

Given the evidence adduced by the Respondent as contained in the record of appeal, and if the Appellant did not want the rower court to act on the banking custom established by the Respondent, the burden was clearly on the Appellant to show that it timeously took steps to clear the Respondents draft with the view to crediting the Respondent’s account with the value thereof within the time frame stipulated by the central Bank for this purpose as averred in paragraph 6 of the further amended statement of defence and which averment was made in response to the averment in paragraph 7 of the Respondent’s amended statement of claim. It is to be noted that it is in the averment in paragraph 6 of the further amended statement of defence that the Appellant itself pleaded the fact of the exchange of the Respondents draft with Allied Bank’s cheque (variously referred to as settlement or replacement draft in the judgment of the lower court) made out in its (i,e. Appellant’s) favour.

The Appellant has submitted that the crux of the Respondent’s case in negligence is that Allied Bank issued a settlement draft on 9/4/96 to the Defendant (i.e. Appellant) and that if the replacement draft had been presented to the CBN Enugu on the said 9/4/96 when Allied Bank was not out of the clearing house, the transaction would have gone through. That the Respondent was precluded from relying on the fact relating to the issuance of the replacement draft on 9/4/96 elicited in cross-examination without amending its pleading to plead that fact as the trial Judge found that the Respondent did not plead the fact.

It is beyond doubt from the amended statement of claim that the Respondent’s case on negligence is not as submitted by the Appellant. It is also glaring that the learned trial Judge and correctly too stated that the submission of Mr. Ulasi in his address that the replacement or settlement draft was actually issued by Allied Bank on 9/4/96 was not pleaded by the Respondent and that no evidence was led on the issue. However dwelling on the aspect of the Appellant’s case relating to the replacement draft in the judgment, the learned trial Judge said thus: –

“However the replacement draft given to the defendant by Allied Bank was not tendered in evidence even though DW1 admitted under cross-examination that the draft was in the defendant’s archives at its head office. I agree with Mr. Ulasi that the court was thereby deprived of the opportunity of seeing the draft to ascertain the date on it and the endorsements, if any made on it by officials of CBN Enugu. Again Section 49(d) (sic) of the Evidence Act comes into play. I am entitled to presume that if the replacement draft had been produced, the evidence would have been unfavourable to the defendant.

I reject the evidence of DW1 that the replacement draft is dated 10/4/96 in view of his admission under cross-examination that he did not see the replacement draft in the file given to him with which he prepared for this case.”

It is indeed a correct statement of law that evidence elicited or obtained in cross-examination in respect of or in relation to facts that have not been pleaded is inadmissible. See OKWEJIMINOR V. GBAKEJI (2008) All FWLR (Pt. 409) 405. Given the portion of the judgment quoted above, I am however of the considered view that the Appellant is clearly under a misapprehension of the use to which the learned trial Judge put the answers elicited from DW1 under cross-examination in relation to the replacement draft which the Appellant itself pleaded in paragraph 6 of the further amended statement of defence. The facts pleaded by the Appellant in paragraph 6 of the further amended statement of defence are (i) that it presented the draft paid in by the Respondent at the Local Clearing; (ii) that Allied Bank Plc thereafter exchanged the draft with its own cheque in favour of the Appellant; (iii) that the Appellant presented the cheque issued in its favour by Allied Bank Plc at the Central Bank Enugu, but was informed that the cheque could not be cleared since Allied Bank was out of clearing and the cheque was consequently returned without any value given to it; and (iv) that the Respondent’s account could not be credited with the value of the draft it paid in, as value was not given to the cheque issued to the Appellant by Allied Bank Plc. The answers elicited from DW1 under cross-examination in relation to replacement cheque clearly went to show that no such cheque was issued as claimed by the Appellant. Hence the invocation by the learned trial Judge of the provision of Section 149(d) of the Evidence Act against the Appellant for the non-production of the replacement draft. The Appellant having adduced evidence through DW1 as to the existence of a replacement cheque dated 10/4/96, in the proof of its case ought to have tendered the same. See ABUBAKAR V. WAZIRI (supra). This is particularly so as DW1 given his evidence never suggested that the cheque could not be found.

One of the aims or objectives of cross-examination is to destroy or damage the case of an adversary, therefore, I am of the considered view that it is eminently proper for a party to cross-examine his adversary in relation to facts pleaded in the said adversary’s pleading and this is all the Respondent’s counsel did concerning the issue of replacement cheque which the Appellant pleaded to have been issued in its favour by Allied Bank Plc. I am also of the considered view that the learned trial Judge was not only very right to have invoked the provision of Section 149(d) of the Evidence Act against the Appellant given the answers of DW1 under cross-examination which irresistibly showed that the Appellant procured no replacement cheque from Allied Bank, but also in rejecting the evidence of DW1 that the replacement cheque (which the witness admitted not to have seen) was dated 10/4/96.

The particulars of negligence in paragraph 14(a) of the amended statement of claim is that there was sufficient time recognised by banking custom for the Appellant to have effected the clearance and payment of the draft the Respondent paid in on 4/4/96. Before now, I have already reached the conclusion that the lower court was duty bound to have acted on the banking custom in this regard to wit that the draft in the instant case was to be cleared and the value thereof credited into the Respondent’s account within four working days of the date it was paid in. The Appellant has not denied that it owed the Respondent the duty of presenting and ensuring the payment of the Respondent’s draft. Surely for the Appellant to show that it was not negligent or that it acted timeously in presenting and ensuring the payment of the draft, it has to show that it took steps in this regard within four working days from the date the draft was paid in on 4/4/96 and which period I have before now found to be from 9th – 12th April, 1996. The learned trial Judge having rightly invoked the provision of Section 149(d) of the Evidence Act against the Appellant for the non-tendering of the replacement cheque which deprived the lower court from ascertaining the date it was issued and whatever endorsement that was on it, and the learned trial Judge also having rightly rejected the evidence of DW1 that the replacement cheque was dated 10/4/96, there was in the circumstances absolutely no evidence placed before the lower court by the Appellant showing that it took any step whatsoever towards the presentation and clearing of the Respondent’s draft paid in on 4/4/96, from 9/4/96 to 10/4/96 when Allied Bank Plc was sent out of the clearing house. In this regard it must be noted that the case of the Appellant on its pleading is not that it could not take any step towards the presentation and clearing of the Respondent’s draft and giving value thereto within the period provided for doing these. because Allied Bank was already out of the clearing house before it could so act. The Appellant’s case on the pleading is that it timeouslv took steps to get the draft cleared, and for this purpose, that it got the draft exchanged for the cheque of Allied Bank Plc, but that credit could not be given to the cheque and consequently the draft of the Respondent, because Allied Bank was sent out of the clearing house during period provided for the clearing and crediting of the draft. It therefore behoved the Appellant to establish by credible evidence the step or steps it took in this regard to wit: to show that it procured a replacement cheque as pleaded by it and that it presented the same for clearing, and these the Appellant never did as rightly found by the learned trial Judge. It is not in doubt that the role of bankers and their predominant business is the receipt of monies on current or deposit accounts and payment of cheques (instruments) drawn, as well as the collection of cheques (instruments) paid in, by a customer. A bank also has a duty under its contract with its customer to exercise reasonable care and skill in carrying out its part with regards to the operations within its contracts with its customers. The duty to exercise reasonable care and skills extends over the whole range of banking business within the contract with the customer, See STANDARD TRUST BANK LTD V. ANUMNU (2008) 14 NWLR (Pt. 1106) 125. l am in no doubt that the Respondent comfortably established that the Appellant was negligent in its duty of presenting and ensuring the payment of its (i.e. Respondent’s) draft by Allied Bank given the total lack of evidence from the Appellant showing that it took any step whatsoever towards the presentation and clearing of the Respondent’s draft paid in on 4/4/96, from 9/4/96 to 10/4/96 when Allied Bank Plc was sent out of the clearing house.

The Appellant has also submitted that the Respondent never made failure to give notice of dishonour of the draft to it as well as the drawee the main plank of its claim in negligence, anywhere in the amended statement of claim. That in the circumstance, the invocation of Sections 48 and 49 of the Bills of Exchange Act does not avail the Respondent.

It is settled law, that law need not be pleaded before a party can rely on the same. Though the law of pleadings in some circumstances requires that some specific laws should be pleaded, (e.9. statutory defence such as the Limitation Statute), it is generally not the law of pleadings, that any law to be relied upon by a party must be pleaded. As a matter of law, a good pleading is to contain are facts relied upon by the parties and they should be positively, precisely and succinctly stated. See OKEEBOR V. POLICE COUNCIL (2003) 5 SC 11; OVIAWE V. INTEGRATED RUBBER PRODUCTS NIGERIA LTD (1997) 3 NWLR (Pt. 492) 126; and NAWA V. A.G. CROSS RIVERS STATE (2008) AII FWLR (Pt. 401) 807.

Sections 48 and 49 of the Bills of Exchange Act Cap. 35 LFN, 1990 deal with “notice of dishonour and effect of non-notice” and “rules as to notice of dishonour respectively. I am of the considered view that the submission of the Appellant to the effect that the Respondent did not make failure to give notice of dishonour of its draft to it, as well as the drawee, the main plank of its claim for negligence, is a clear misapprehension of the case of the Respondent on its pleading particularly having regard to the averments in paragraphs 8, 9, 10, 11,12,13,16 and 16(b)thereof. The averments in these paragraphs clearly raised the issue as to whether or not the Appellant being a Banker acted in accordance with the law in relation to the draft paid by the Respondent into its account with the Appellant upon the dishonour or nongiving of value to it within the period that value ought to have been given to it, the draft having been paid in on 4/4/96. It is not the submission of the Appellant that there is no evidence before the lower court concerning the fact that it never gave the Respondent notice of the dishonour of its draft consequent to the dishonour of the replacement cheque issued to the Appellant by Allied Bank for the purpose of giving value to the said draft. The facts pleaded by the Respondent and evidence adduced in support of the facts in respect of the Appellant’s non-action in relation to the draft as well as the evidence adduced by the Appellant itself in relation to what it did after the replacement cheque issued to it by Allied Bank was not given value, eminently justified the invocation of the provisions of Sections 48 and 49 of the Bills of Exchange Act as the learned trial did in the judgment of the lower court.

The Appellant also relying on the provision of Section 50 (1) of the Bills of Exchange Act has submitted that even if failure to give notice of dishonour is the crux of the Respondent’s case, (though it did not concede this), the Respondent has waived its right to rely on the said failure to give notice. The Respondent responded to the submission on waiver that this is a new or fresh issue which was not canvassed before the lower court and that the Appellant ought to have first obtained the leave of this Court to now argue the issue.

It is my considered view that the stand of the Respondent that the issue of waiver argued by the Appellant is a new issue in respect of which the Appellant should have first sought and obtained the leave of this Court before arguing the same is unassailable. The issue of waiver was never raised or argued before the lower court. The lower court glaringly also never made any pronouncement on the issue of waiver in the judgment on appeal. The issue of wavier raised by the Appellant in the instant appeal and argued in its Brief of Argument is clearly a fresh or new issue. The law reports are replete with authorities that an appellant cannot simply argue a new or fresh issue on appeal. An appellant must first obtain the leave of the appellate court before this can be done. And where an appellant fails to do this, the issue is incompetent and liable to be struck out. See OJIOGU V OJIOGU (2010) All FWLR (Pt. 538) 840; and ONYEMAIZU V. OJIAKO (2010) All FWLR (Pt.523) 1870. The Appellant has glaringly not obtained the leave of this Court before arguing the issue of waiver it being a fresh issue. The issue and argument thereon are hereby discountenanced.

The Appellant said that the Respondent’s contention that it (i.e. Appellant) should have promptly retrieved the draft after it discovered that Allied Bank had been barred from the clearing house to enable the Respondent proceed to Abuja to collect cash in exchange for the draft is simply an afterthought and that the lower court seriously erred in law in upholding the contention. The Appellant further said that the real issue was whether Allied Bank could have paid the N4.5 million the value of the draft paid in by the Respondent at the material time. The Appellant stated the answer to be in negative as it was because of this that Allied Bank was barred from the clearing house.

PW1 in his evidence stated the difference between a draft and a cheoue. In this regard he said that a draft is as good as cash because an account must have been debited before the draft is prepared. In the DIAMOND BANK PLC case (supra) at pages 64 – 66, Chukwuma-Eneh, JSC; dwelling on what a draft is said: –

“…Firstly, it is not right to treat “bank draft” and ordinary “cheque” as interchangeable terms as the two instruments connote different legal instruments with differing implications. Even the definitions of these two instruments clearly attest to their inherent differences. A bank draft according to Advanced Law Lexicon. 3rd edition, Book 1 page 462 has been defined as, “a cheque drawn on a bank by itself. A banker’s:

“Draft must be honoured because it is drawn on the bank itself rather than on the debtor’s account. The debtor must pay the bank the sum drawn in advance.”

An ordinary “cheque” on the other hand, is defined in section 73 of (part III) of Bills of Exchange Act, Cap. BB, Laws of Federation of Nigeria, 2004. Section 73 provides as follows:

“A cheque is a bill of exchange drawn on a banker payable on demand and except as otherwise provided in this part, the provisions of this Act applicable to a bill of exchange payable on demand apply to a cheque.”

…However the peculiarities of the two instruments have been brought out in a succinct manner by Idigbe, J., (as he then was) in the case of R v. Okon (1933 1966) 1 NBLR 241 at 253-254 and I quote with approval his Lordship on this aspect of the matter thus:

“When money is paid by a customer into a bank, there is a contract between the banker and the customer in which the banker receives the money as a loan from a customer against the promise by the banker to honour the customers cheque or orders of the customer. In this connection, there is hardly any difference between a cheque and a draft. As was said by Pallock C. B. ‘the word draft no doubt includes a bill of exchange as well as a cheque.’

‘It is a nomen generale which embraces every request by the drawer against the drawee to pay money.’ See Hunter v. Boywer (1850) 15LTO5 281 at 282. A banker’s draft however is not to be regarded as a cheque since it is not really addressed by one person to another as required by the Bills of Exchange Act, Cap. 21 (section3). It is drawn on behalf of a bank upon itself, whether payable at the head office or at some other branch of the bank and at law, the head office and its branches constitute one legal person or entity (see Capital and Counties Bank Ltd. v. Gordon (1903) A.C 204). All the same, where as in the instant case a customer request his banker to provide him with a banker’s draft the amount in respect of which is to be debited to his account, he ought ordinarily to enclose with his request a cheque covering the amount. The amount so paid in by the customer becomes under the principle above described the bank’s money and when paid out, still that of the bank but paid out pursuant to the contract above described (i.e, that of debtor and customer)….

In this graphic manner the erudite learned Judge has brought out in clearest of terms the nitty gritty of the legal implications between the two instruments i.e. “bank draft” and ordinary “cheque”. Although I must emphasize that while a bank draft must be honoured, an ordinary cheque is payable on demand, this distinction between the two instruments is significant as based on the fact that before a bank draft issue, the customer’s account must have been debited and all things being equal it must be honoured, this is not the case with ordinary cheque which is payable subject to availability of funds in the customer’s account…”

It is worthy of note that there is no appeal against the finding of the lower court that the Bills of Exchange Act applies to a draft as in the instant case. Having regard to the case of the Appellant on the pleading and the evidence adduced in support of the case through DW1, the replacement cheque which was issued to the Appellant was so issued after the Appellant submitted the Respondent’s draft at the Local Clearing and it was Allied Bank that issued the said replacement cheque in favour of the Appellant. It is thus clear that the Respondent’s draft was not taken to, or deposited with Allied Bank by the Respondent for any purpose. As clearly borne out by the evidence before the lower court, the Appellant never informed Allied Bank of the dishonour of the replacement draft Allied Bank issued in its favour. The lower court indeed stated that the Appellant admitted holding on to the replacement draft till date. This is clearly in contravention of the provisions of Sections 48 and 49 of the Bills of Exchange Act (supra) and the omission of the Appellant to have given Allied Bank notice of the dishonour of the replacement draft at least discharged the said Bank in respect of the same. The Appellant testified through DW1 to the effect that it was not correct that if the Appellant had been more diligent, it would have been able to retrieve the draft for the Respondent to enable it go to Abuja to collect cash. That at the time the Respondent made the request, Allied Bank had gone out of clearing and it was no longer possible to retrieve the draft. The Appellant would also appear to have expressed the view that the Respondent ought to have placed his claim in respect of the draft before the NDIC, The question which readily comes to mind is, what will the Respondent pursue such a claim with, when its draft was never returned to it? Suffice it to say that the learned trial Judge relying on the evidence of PW1 to the effect that the collecting bank should return the instrument to the customer with the reason “Paying Bank out of Clearing” specified on the face of the instrument when the bank on which the instrument is drawn is out of the clearing house stated thus: –

“The defendant did not take this course, which in my view common sense dictates is the right course. The defendant should have immediately on that 10/4/96 before the expiration of the four days returned the replacement draft to Allied Bank Onitsha and collected from them the Original Bank draft. They would then proceed to endorse on the face of the draft “paying bank out of clearing” and have the draft returned to the plaintiff. This would then give the plaintiff the opportunity to attempt to recover his money from Allied bank. Instead of taking this safe course, the defendant opted to retain the replacement draft in the hope that Allied Bank would soon return to the clearing House. Indeed the defendant did not even notify the plaintiff that value was not given to the replacement draft and that its account could not be credited with the value of the draft…”

The learned trial Judge in my considered view was very correct in all he said as reproduced above, The real question having regard to the nature and legal implications of a draft as contained in the portion of the judgment in the DIAMOND BANK case (supra) reproduced above cannot be whether Allied Bank could have paid N4.5 million at the material time. Having regard to the law as it relates to bank draft, Allied Bank Plc was bound to honour the draft upon presentation of the same to it by the Respondent once it was still operating as a Bank. There was unchallenged and uncontroverted evidence before the lower court that as at 12/4/96 and 16/4/96 respectively Allied Bank Plc was still operating as a Bank despite being sent out of the clearing house on 10/4/96. Indeed DW1 under cross-examination while saying that he could not state the exact date Allied Bank Plc was declared distressed: was categorical that it was a few months after it was barred from clearing house. The question as whether or not Allied Bank could have paid cash of N4.5 million at the material time is most irrelevant in the absence of facts in this regard pleaded by the Appellant and credible evidence adduced to show that the financial standing of Allied Bank at the material time was such that it had no N4.5 million to pay.

From all that has been said in relation to Appellant’s issue 2, above, I find the learned trial Judge eminently correct in holding that the Respondent sufficiently pleaded and proved negligence against the Appellant in its handling of the Respondent’s draft. In the circumstances issue 2 is resolved against the Appellant. Given this conclusion, the instant appeal is found to be lacking in merit. It fails and is hereby dismissed. The judgment of the lower court delivered on 10/10/2005 is affirmed.

Costs in the sum of N20,000.00 is awarded in favour of the Respondent and against the Appellant.

MOHAMMED L. TSAMIYA, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother, LOKULO-SODIPE, JCA. I agree with his reasoning and conclusion that the appeal lacks merit, and ought to be dismissed. I too hereby dismiss it. The judgment of the trial court delivered on 10/10/2005 is hereby up held.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had a preview of the leading judgment prepared by my learned brother, LOKULO-SODIPE JCA. I agree entirely with his reasoning and conclusion. I do not see any cause for interference with the judgment of the lower court. I hold that the appeal has no merit and same is accordingly dismissed. I abide by the order as to cost.

Appearances

Dr. A.J.G. MogbanaFor Appellant

AND

A. I. AgboguFor Respondent