Chief Festus Yesufu Vs Co-operative Bank Limited (1988)

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WALI, J.S.C.

On 20th March, 1989, having read the record of proceedings and the briefs filed and after learned Counsel’s oral submissions in elucidation of their respective briefs, I allowed the appeal and reserved stating my reasons for doing so to today which I now do.

In the High Court of Justice, Bendel State of Nigeria, Benin Judicial Division, the plaintiff, as per his amended Statement of Claim asked for the following reliefs against the defendant-

“(a) A declaration that the plaintiff is not indebted to the defendant in respect of his accounts with the defendant a banker at Ibadan Oyo State of Nigeria and Benin City, Bendel State of Nigeria.

(b) A declaration that the plaintiffs accounts with the defendant at Ibadan and Benin City are in a credit of N2,211,956.35k made up as follows:-

(i) Ibadan Branch N677,264.15k

(ii) Benin Branch N1,534,692.20k

Total N2,211,956.35k

(c) interest at the rate of 10% per annum from the date of issuance of the writ (22/10/85) until payment.

(d) an Order for payment by the defendant to the plaintiff of the sum of N2,211,956.35k or any sum due and payable from the defendant to the plaintiff on the plaintiffs account with the defendant at Ibadan and Benin City.”

The case was tried by Akenzua, J., at the end of which he granted the plaintiff the reliefs prayed for in (a) and (b) but refused him (c) and (d) (supra), stating his reason for doing so as follows:-

“Just as the statement of defence has failed to answer all the material facts in the Amended Statement of Claim so the evidence led by the defence had failed to answer the case made out by the plaintiff. As claimed this is a declaration and so by reason of the evidence and under the principles already mentioned above I am satisfied that the plaintiff has established and proved the declaration he seeks in the second relief in paragraph 31 of the Amended Statement of Claim. As to the third and fourth reliefs this Court cannot grant them since there is no evidence that a demand was made on the defendant for the sum of money and the defendant refused to pay. I therefore give judgment for the plaintiff and I declare as follows:-

That the plaintiff is not indebted to the defendant in respect of his accounts with the defendant, a Banker at Ibadan Oyo State of Nigeria and in Benin City Bendel State of Nigeria.

2. That the plaintiffs account with the defendant at Ibadan Branch and in Benin City Branch are as follows:-
3. Ibadan Branch …………..N677,264.15
4. Benin Branch …………..N1,758,288.00”

By a Notice of Appeal dated 15th July, 1987, barely six days after the delivery of judgment, the defendant appealed against it to the Court of Appeal. The plaintiff was also not satisfied with that part of the judgment refusing him the reliefs he asked for in sub-paragraphs (c) and (d) of paragraph 31 of the Amended Statement of Claim; he therefore instructed his counsel at the Court of trial Dr. Onaghise to cross-appeal. As a result of dispute that developed between the plaintiff and his counsel, the plaintiff changed counsel and instructed the Chambers of T.J. Onomigbo Okpoko & Co. to prosecute his case. It was when T.J. Onomigbo Okpoko came to write the plaintiff’s brief in respect of the appeal filed by the defendant that it was discovered that the plaintiff’s instruction to cross-appeal was not carried out by his former counsel. Then on 9th February 1988, the plaintiffs new Counsel filed an application dated 25th January 1988 in the Court of Appeal with the following prayers:-