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YARO v. POLARIS BANK (2022)

YARO v. POLARIS BANK

(2022)LCN/16638(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, March 10, 2022

CA/K/413/2008

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

ALHAJI GARBA YARO (SARKIN ZANGO) APPELANT(S)

And

POLARIS BANK LIMITED (Formerly Skye Bank) RESPONDENT(S)

 

RATIO

THE DEFINITION OF A COUNTER-CLAIM

A counter-claim is an independent action which for convenience of procedure is combined in another action. In the case of GENERAL YAKUBU GOWON VS. MRS EDITH IKE – OKONGWU (2003) LPELR – SC 64/97, the Supreme Court held thus:
“In substance, a counter-claim is a cross-action and not merely a defence to the Plaintiff’s claim. It is an independent action and not part of the original action though for convenience, the two are tried together.”
PER IDRIS, JCA

MOHAMMED BABA IDRIS, J.C.A. (Delivering Leading the Judgment): By a Writ of Summons dated 1st November, 2004, the Appellant herein, as Plaintiff claimed against the Respondent as Defendant/counter-claimant as follows:
1. A Declaration that he was not indebted to the Defendant/counter-claimant in any way and how so ever.
2. An Order of Court directing the Defendant/Counter-Claimant to release the sum of N1,527,511.25k distrained by the Defendant/Counter-Claimant, and
3. The sum of N20 Million as exemplary damages for pains and embarrassment.

On the other hand, the Respondent counter-claimed against the Appellant as follows:
1. Judgment entered in favour of the counter-claimant against the Plaintiff in the sum of N3,401,164.78 (being the unsettled debit balance in the saving account of the Plaintiff)
2. 25% interest of the aforesaid amount from the date of filing this suit till judgment is delivered.
3. 30% interest of the judgment sum from the date of judgment until same is liquidated.
4. The cost of filing this counter-claim and all other cost incurred by the counter-claimant as a result of the Plaintiff’s default therefrom.

5. An order of this Honourable Court for the payment of the sum of N10,000,000.00 (Ten Million Naira) as general damages against the Plaintiff.

It is the claim of the Appellant at the Court below that he is a customer of the Respondent and has two accounts namely – savings and fixed deposit accounts, with the Respondent. The Appellant also claims that in the fixed deposit account was a large sum of money well over sixty million naira margin and on the instruction of the Appellant, the Respondent’s agents usually transfers money from the Appellant’s fixed deposit account into the savings account where the Appellant makes his withdrawals.

It is the claim of the Appellant that his instructions has been ongoing until the 7th day of October, 2003 when the Appellant found out that he only had N12 Million in his fixed deposit account and upon discovery, he instructed one of the agents of the Respondent to transfer N2,000,000 Million out of the N12 Million into his savings account but he was informed that the sum of N5,000,000 was transferred instead of N2,000,000 that he directed to be transferred.

It is also the Appellant’s claim that he demanded from the computer operator of the Katsina Branch of the Respondent on who ordered that N5,000,000 be transferred into his savings account instead of N2,000,000 and he was informed by the computer operator that the said transfer was effected on the instructions of the manager. It is also the claim of the Appellant that the Katsina Branch Manager and the accountant admonished the computer operator on why the Appellant’s instructions was not adhered to and they later tendered their apologies to the Appellant and that the excess of N3,000,000 would be reverted back to the Appellant’s fixed deposit account and on that understanding, the Appellant continued with his normal withdrawals from his savings account.

The Appellant also claimed that he was later informed that the sum of N7 Million was transferred from his account and the Appellant demanded to know how that amount was withdrawn without their knowledge of which the accountant of the Respondent later apologized and told the Appellant that it was N3.5 Million that was missing from the account and so he told the Appellant that they will cross-check their records. The Appellant further claims that he also informed the accountant that he was granted both loan and overdraft facilities when he was only operating savings account and that he has since repaid both the loan and overdraft facilities to the Respondent and as evidence he was given a letter of clearance.

The Appellant further claims that there was a time that the Branch Manager of the Respondent, Abdulsalam and his accountant Gezawa and one Aliyu all staff of the Respondent, informed him that the anomaly discovered in his accounts was due to their faults and that there was a time the matter went to the Respondent’s regional office in Kano and after an apology was tendered, he was prevailed upon not to take any action and that notwithstanding, the Respondent served the Appellant with a letter urging him to pay off a debt of N3,000,000.

The Appellant also claims that on receipt of the said letter, he, suffering from high blood pressure became traumatized and restless and was quickly rushed to his doctor. It is the claim of the Appellant that the receipt of the said letter became a sort of embarrassment to his person, his staff, relations and his entire family and that he has the sum of N1,527,511.25k in his account with the Respondent which the Respondent has unlawfully distrained.

On the 10th day of May, 2007, the Appellant opened his case calling 3 (three) witnesses i.e. PW1 – PW3 who tendered two documents which were admitted and marked as Exhibits 1 and 2 thus:
Exhibit 1 – Letter dated 9th November, 2007 acknowledging payment of facility granted to the Plaintiff by the Defendant and in effect returning his collateral.
Exhibit 2 – Letter of demand addressed to the Plaintiff dated 28/06/04 in respect of saving account no. 34005702 wherein the Plaintiff was demanded to offset an indebtedness of N3,401,164.78k to the Defendant.

On the 22nd day of May, 2007, the Appellant closed his case and the matter was adjourned to the 19th day of June, 2007 for the defence.

The Respondent opened its case in Defence/counter-claim on the 19th day of June, 2007 calling 5 (five) Witnesses i.e. DW1 – DW5 who tendered 2 (two) documents which were admitted and marked as Exhibits 3 and 4 respectively as follows:
Exhibit 3 – The original savings account withdrawal form of Afribank Nig. Plc dated 13th November, 2003 wherein the sum of N5 million was withdrawn in favour of Alh. Garba Yaro with A/C 34000702.
Exhibit 4 – The statement of A/C of one Garba Yaro with A/C No. 1222091270419 (34000702) dated August to September 2003 as contained in sheet 1 to 6 maintained with AfriBank PLC.

The Respondent closed its case on the 15th day of April, 2008, and the matter was adjourned to the 20th day of May, 2008 for the address of parties. The parties to the suit addressed the Court on the 29th day of July, 2008 and the matter was adjourned to the 29th day of July, 2008 for judgment.

On the 29th day of July, 2008, judgment in the Suit No: KTH/MF/14/04 was delivered by Honourable Justice A. A. Bawale, wherein the learned trial judge gave judgment in favour of the Respondent in the substantive matter, and the counter-claim of the Respondent also succeeded.

Dissatisfied with the judgment of the Court below, the Appellant filed a Notice of Appeal dated the 5th day of August, 2008 and filed on the 7th day of August, 2008 comprising of 3 (three) Grounds of Appeal. The Appellant thereafter filed a Further Amended Notice of Appeal dated the 20th day of February, 2014 and filed on the 23rd day of February, 2015.

The parties herein then filed and exchanged their respective briefs of argument.

The Appellant filed his substantive brief of argument dated the 31st day of January, 2021 and filed on the 4th day of February, 2021 which was settled by his Counsel, Muhammad Kamil Abba Esq., wherein 3 (three) issues were distilled for determination as follows:
1. Whether Exhibit 4 having been prepared from some banker’s books and so many other unidentified and unspecified documents is enough to fix the Appellant with liability. (Formulated from Ground D)
2. Whether the Respondent could succeed on its counter-claim without leading evidence in support of same. (Formulated from Ground C)
3. Whether the learned Judge properly directed himself as to the burden of proof, having regard to the nature of the issues placed before him, in particular evidence of maintaining a savings account with the Respondent raised by the plaintiff in his claim and evidence. (Formulated from Ground B)

The Respondent on the other hand filed its substantive Respondent’s Brief of Argument dated the 2nd day of February, 2021 and filed on the 8th day of February, 2021 which was settled by its Counsel, Chief E. O. Obunadike Esq., wherein it raised a lone issue for determination thus:
Whether the trial Court was right to have entered judgment in favour of the Respondent in respect of the counter-claim.

On the other hand, the Appellant filed his Appellant’s Reply Brief of Argument dated and filed on the 22nd day of September, 2021 and settled by his Counsel, Muhammad Kamil Abba Esq.

On issue one, the learned Counsel for the Appellant submitted that Exhibit 4 ought not to have been admitted in evidence because it contravenes the mandatory provisions of Section 97(1)(h) and (2)(e) of the Evidence Act. Counsel further submitted that the Respondent did not adduce evidence either oral or documentary, to show how the overall debit balance in the Appellant’s purported statement of account was arrived at.

On issue two, the Appellant’s Counsel submitted that the counter-claim is a separate suit and like all pleadings, evidence must be led in support thereof. On this point, learned counsel cited the case of IFETA VS. SHELL PET. DEV. CO. LTD (2006) 7 MJSC 121. Counsel contended that the Respondent pleaded the sum of N3,472,488.65k, did not lead evidence in support of same but sought relief in the sum of N3, 401,164.78k which was not the sum pleaded.

On issue three, the learned counsel for the Appellant argued that the burden of proof as to whether the Appellant was indebted to the Respondent or not, is on the Respondent and that it is not enough to dump Exhibit 4 on the Court in proof of the Appellant’s liability but evidence must be adduced to show how the Appellant became indebted to the Respondent on a savings account.

In conclusion, Counsel for the Appellant urged the Court to allow the appeal.

In response to the arguments of learned Counsel for the Appellant, the learned counsel for the Respondent submitted that from the totality of evidence adduced by the Respondent at the trial, the Respondent has discharged the evidential burden placed upon it and counsel referred to Exhibits 2 and 3 as well as the testimonies of DW1 – DW5 and the testimony of PW2.

The Respondent’s Counsel also submitted that Exhibit 4 clearly shows that the Appellant was indebted to the Respondent to the tune of N3,401,164.78 being the outstanding balance in the said account as at the date the Appellant was called upon via Exhibit 2 to make a refund.

The Respondent further argued that the Appellant had admitted that he had the sum of N1,527,511.25k in his savings account but failed to prove at what time in question he had the said amount in the account and having admitted that much, the Respondent does not need to lead further evidence on that fact. On this point, counsel cited the case of WEMA BANK PLC VS. OSILARU (2008) 10 NWLR (PT. 1094) PAGE 150 AT 179, PARAS A – B.

The Respondent’s Counsel also argued that funds in the form of credit in a customer’s account with a bank does not belong to the customer when he is indebted to the bank and that Exhibit 4 was properly admitted in evidence by the trial Court as proper foundation was laid by DW5 in full fulfillment of the provisions of Section 97(1)(h) of the Evidence Act. It was further argued that the claim and relief sought by the Respondent as could be seen on the counter-claim of the Respondent at the trial Court was for the sum of N3,401,164.78K.

In conclusion, the Court was urged to dismiss the entire appeal by affirming the judgment of the trial Court below.

In his reply, the Appellant’s Counsel argued that the argument of counsel to the Respondent that the Appellant was being mistakenly allowed or being mistakenly paid the sum of N5 Million by the Respondent is not supported by the record and that the case of WEMA BANK PLC VS. OSILARU (supra) cited by the Respondent is distinguishable from the facts of this case. Counsel further argued that mistake is a special defence which had not been pleaded at the trial.

The Appellant’s Counsel submitted that the claim that the Appellant had the sum of N1,527,511.2k in the contentious savings account with the Respondent is not an admission with context of Section 20 of the Evidence Act.

The learned Appellant’s Counsel also contended that none of the Respondent’s witnesses gave evidence as to the state of the Appellant’s account in its defence and in proof of its counter-claim argued by the Respondent’s Counsel.

In conclusion of his argument, the Appellant’s Counsel submitted that the Respondent has not sufficiently reacted to this appeal and that the Respondent’s submissions ought to be discountenanced as it seeks to introduce issues that it did not raise at the trial and evade well established legal principles.

RESOLUTION OF ISSUES
Having summarized the argument of the parties, this Court will now proceed to determine the issues in this appeal and in doing so, I shall raise a sole issue for determination which I think will sufficiently deal with the issues raised by parties to this appeal thus:
Whether the trial Court was right to have entered judgment in the Suit No: KTH/MF/14/04 as it did with regards to the evidence placed before it.

Before I move further, it is important to state that at the point of filing the suit at the trial Court and the admission of Exhibit 4 in evidence, the substantive Evidence Act was the Evidence Act, 2004 and Section 97(1)(h) and (2) of the said Evidence Act provides thus:
“97 Cases in which secondary evidence relating to documents may be given
(1) Secondary evidence relating to documents may be given of the existence, condition or contents of a document in the following cases –

(h) When the document is an entry in a banker’s book.
(2) The secondary evidence admissible in respect of the original documents referred to in the several paragraphs of Section (1) of this section is as follows –

(e) in paragraph (h), the copies cannot be received as evidence unless it be first proved that the book in which the entries copied were made was at the time of making one of the ordinary books of the bank, and that the entry made in the usual and ordinary course of business, and that the book is in the custody and control of the bank, which proof may be given orally or by affidavit by a partner or officer of the bank, and that the copy has been examined with the original entry and is correct, which proof must be given by some person who has examined the copy with the original entry and may be giving orally or by affidavit…”

Before tendering Exhibit 4, the DW5 being an officer of the Respondent, in compliance with the above reproduced Section of the Evidence Act, gave evidence that the book in which the entries of the statement of account copied were made was at the time of making it, one of the ordinary books of the bank, and that the entry was made in the usual and ordinary course of business, and that the book was in the custody and control of the bank, which proof he gave orally thus:
“Whenever this kind of issue have arisen, the bank used to prepare a statement of A/c in respect of such A/c that has a problem. The statement is usually prepared after considering so many documents in relation to the A/c. In my capacity as operation manager, I was instructed to prepare a statement of A/c in respect of the A/c of the Plaintiff. It took me four days to prepare the statement of A/c of the Plaintiff. I used counter sheet, cash book, cheque book register, control ledger, cheque rejected register, control register, in and out register and so many other documents. I prepare the statement after considering these documents and these documents are in perfect control and custody of the bank. After examining the A/c and found to be correct I left it with the bank. Yes I did prepare a statement of A/c in respect of A/c of the Plaintiff because it has AFRIBANK Logo and the entries were arranged serially. The A/c was two A/c A/c Nos. computer generated and analogue A/c I can recall the A/c No. is 34000702, this statement of A/c I prepare in respect of the A/c of the Plaintiff.”

It was after he gave this evidence orally, that the Respondent’s Counsel, Mr. Ogbunadike sought to tender the said statement of account of the Appellant in evidence. See page 54 of the Record of Appeal. It is at this point I will in addition to my findings as I have made above, agree with the decision of the trial Court on the admission of Exhibit 4 in evidence.

Again, from the evidence of the Appellant as contained in his Statement of Claim at the trial Court, he claimed at paragraphs 8 – 10 that he ordered the transfer of N2,000,000 into his savings account with the Respondent but instead N5,000,000 was transferred into the said account as against his instructions of transfer of N2,000,000. From that evidence, the said N2,000,000 was the last withdrawal the Appellant made from his savings account before he was served with Exhibit 2.

The Appellant had stated in paragraph 29 of his statement of claim that he has in his account, the sum of N1,527,511.25k with the Respondent which was unlawfully distrained by the Appellant. In his evidence in chief, the Appellant also testified as contained in page 30 of the Record of Appeal that he usually cause transfers from his fixed deposit account to his savings account and up to the time, he only had N1,5,000,000 in his savings account. In his evidence during cross-examination, the Appellant also said he came to Court to seek for an order against the Defendant to pay the N1,500,000 that was distrained by the Respondent. At no point did the Appellant explain how he arrived at his claim neither was he able to discharge the burden placed on him to prove the right which he asserts in his statement of claim. See also the findings and decision of the learned trial judge on the evaluation of the Appellant’s claim at pages 76 and 77 of the Record of Appeal which I also agree with.

However, the Respondent in line with Section 135 of the Evidence Act, 2004 and in order to discharge the burden placed on it to prove that the facts which it asserts in its counter-claim exist, called DW1 – DW5 and they all gave evidence that a withdrawal form was filled by the staff of the Respondent for the sum of N5,000,000 on behalf of the Appellant and of which the Appellant signed and at the point of tendering the said withdrawal slip (Exhibit 3), the Appellant never objected to same neither was there in evidence given by the Appellant that the said withdrawal slip was not signed by him.

In further proof of its evidence against the claim of the Appellant for the sum of N1,527,511.25k, the Respondent tendered Exhibit 4 which showed the Appellant’s withdrawal of N5,000,000 from his savings account on the 13th of November, 2003 which was the same date on the Exhibit 3 signed by the Appellant. The said Exhibit 4 clearly shows that on the 13th day of November, 2003, when the said withdrawal of N5,000,000 was made, the Respondent had only 1,527,511.25 showing that the withdrawal was made in excess of the balance thereby leaving a debit of N3,472,488.75. Looking at the same Exhibit 4, it is clear that 71,323.97 was credited into the account of the Appellant and it was debited leaving the sum owed by the Appellant at N3,401,164.78. This sum was what was pleaded by the Respondent in paragraph 12 of the Respondent’s counter-claim and the said sum was sought for by the Respondent in relief 1 of its counter-claim before the trial Court.

By virtue of my findings as I have made above, and in addition to the evaluation of the evidence and findings made by the trial Court as contained on pages 77 and 78 of the Record of Appeal, the argument of the learned counsel for the Appellant contained on the last part of his argument on issue one and at the last part of issue two of the Appellant’s Brief of Argument is thus disregarded.

In conclusion, it is the decision of this Court that Exhibit 4 having been prepared from some banker’s books and documents together with the evidence before the Court, is enough to fix the Appellant with liability and that the Respondent sufficiently discharged the burden of proof placed on him to warrant the grant of its claim by the trial Court.

Again in considering the arguments of the Appellant’s counsel under issue two of the Appellant’s Brief of Argument that the counter-claim is a separate suit and like all pleadings, evidence must be led in support and that the Respondent’s evidence before the trial Court is only in defence to the suit and does not include evidence in support of the counter-claim, I will like to address the issue once and for all.

A counter-claim is an independent action which for convenience of procedure is combined in another action. In the case of GENERAL YAKUBU GOWON VS. MRS EDITH IKE – OKONGWU (2003) LPELR – SC 64/97, the Supreme Court held thus:
“In substance, a counter-claim is a cross-action and not merely a defence to the Plaintiff’s claim. It is an independent action and not part of the original action though for convenience, the two are tried together.”

Flowing from the above authority, the evidence of the Respondent given both in defence of the Statement of Claim and in proof of the counter-claim before the trial Court is not out of place as same to my mind was done as a matter of convenience.

In the final analysis and in addition to my findings above, this Court is satisfied with the decision of the trial Court in its entirety and hereby hold that the trial Court was right to have entered judgment in the Suit No: KTH/MF/14/04 as it did with regard to the evidence placed before it and thus uphold same.

This appeal lacks merit and it is therefore hereby dismissed. I shall make no further order as to cost.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the opportunity of reading in advance the judgment delivered by my learned brother, Mohammed Baba Idris, JCA. I agree with the reasoning and conclusion reached in the lead judgment.

I also agree that the appeal lacks merit and ought to be dismissed. Finally, I abide with the order as to costs.

BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading a draft of the judgment just delivered by my learned brother M. B. Idris, JCA. My brother in the lead judgment thoroughly reviewed the facts as contained in the pleadings of the parties and the evidence adduced in support thereof during trial and reached the inevitable decision that this appeal is bereft of merit.

I agree with and adopt as mine the finding and conclusion reached by my learned brother in the lead judgment, I also dismiss this appeal and affirm the judgment delivered by the lower Court on 29th July, 2008 in Suit No. KTH/MF/14/04. I abide by the order as to cost.

​Appearances:

M. K. Abba, Esq. For Appellant(s)

I. Haruna, Esq. For Respondent(s)