Chief Victor Ndoma-egba V. African Continental Bank Plc (2005)

LAWGLOBAL HUB Lead Judgment Report

OGUNTADE, J. S. C.

The appellant was the plaintiff at the Calabar High Court of Cross River State. He brought the suit for and on behalf of Ndoma-Egba, Ebri & Co. (hereinafter referred to as the Law firm’). He claimed against the respondent, as the defendant for the following:

“(i) The sum of N331,000.00 unlawfully withdrawn from the plaintiff’s current account No. 05756 as a result of the defendant’s negligence and collusion.

(ii) Interest on the principal sum calculated at the rate of 52% from the date of withdrawal until judgment.

(iii) N5 million (Five million Naira) being general damages for breach of contract, negligence for breach of contract, negligence and loss of reputation”.

The parties filed and exchanged pleadings after which the suit was heard by Itam J. In a reserved judgment on 22-9-98, the trial Judge awarded to the plaintiff the sum of N331,000.00 being the amount alleged to have been unlawfully withdrawn from the account of the law firm and a further sum of N500,000.00 as general damages. Dissatisfied with the said judgment, the defendant brought an appeal against it before the Court of Appeal, Calabar Division (hereinafter referred to as the ‘court below’). The court below in its judgment on 11-4-2000, allowed the appeal. It set aside the award made by the trial court and dismissed the plaintiff’s suit. The plaintiff has brought before us an appeal against the judgment of the court below. In the appellant’s brief filed by plaintiff’s counsel, the issues for determination in the appeal were identified as the following:

“1. Were their Lordships right in holding that the appellant did not prove that P.W.1’s signature on exhibits 2,3 and 4 were forged

2. Were their Lordships right in holding that the appellant as plaintiff were (sic) estopped from raising the issue of forgery
3. Were the withdrawals from the appellant’s account lawful and was the award of damages by the trial court justified

The respondent formulated its own set of issues for determination. A comparison of respondent’s issues with the appellant’s shows that in substance both sets are similar. I shall be guided in this judgment by the appellant’s issues. I intend to consider each of the issues serially. It is necessary that I expose briefly the facts giving rise to the dispute out of which this appeal arose as pleaded by the parties.

The plaintiff was the senior partner in a law firm registered as Ndoma-Egba, Ebri and Company. The law firm had a registered office at Calabar. It maintained a current account No. 0576 with the defendant, bankers, at the defendant’s branch situate at Calabar Road, Calabar. It was a ‘clients account’. In order to operate the account, the law firm filled with the defendant a mandate, which indicated that the cheques and instruments of the law firm, to be valid, ought to be jointly signed by the two legal practitioners in the law firm, that is, the plaintiff Victor Ndoma-Egba and Richard David Ebri. A card showing the specimen signatures of the two legal practitioners was filled and left with the defendant.

The law firm later paid a cheque for N500,000.00 into its account with the defendant. The cheque had been received for a client of the law firm – Messrs. Reynold Construction Company Ltd. (hereinafter referred to as RCC). R.C.C. later instructed the law firm to pay a part of the N500,000.00 to its sister company called NWRD. The law firm issued the cheque on 12-3-93. On 30-3-93, plaintiff called at the defendant’s branch to ascertain if the cheque issued had been paid. He was however informed that although the said cheque for N375,000.00 had not yet been presented, the law firm had only N2,000.00 in its account. Upon further enquiry, the plaintiff discovered that three different cheques for N225,000.00, N31,000.00 and N75,000.00 had been paid out of the account on 1/3/93, 1/3/93 and 12/3/93 respectively. These came to a total sum of N331,000.00. The cheques for N31,000.00 and N75,000.00 had been paid to one Oluwaseyi Fabelurin and the one for N225,000.00 to the defendant.

The plaintiff pleaded that the defendant had been negligent by not observing the instructions left with it on the mandate card as to who could validly sign cheques and instruments on behalf of the law firm. The cheque issued by the law firm to NWRD was dishonoured by the defendant on its presentment. Embarrassed, the plaintiff by its letters wrote to the defendant to demand a refund or restitution. The defendant denied liability. The plaintiff therefore sued as earlier stated above.

The defendant denied plaintiff’s claim. It pleaded that on 1/3/93, Mr. Richard D. Ebri wrote to the defendant requesting for a bank draft for N225,000.00 in favour of a stated company. The law firm’s cheque for N225,000.00 was annexed to the letter. The other withdrawals of N31.000.00 and N75,000.00 were made by the law firm’s accountant Oluwaseyi A. Fabelurin who had hitherto made huge withdrawals on the law firm’s behalf. The plaintiff had introduced the accountant to the defendant and the defendant had in good faith dealt with him. The cheques against which the three payments were made had carried signatures, which were regular on their face. The signatures on the cheques were those of the plaintiff and Mr. Richard Ebri. Mr. Richard Ebri had not complained that his signature was forged. The defendant pleaded that the plaintiff had been negligent or contributorily negligent.

The trial judge heard the case on this state of pleadings. The plaintiff testified as P.W 1 and his partner Richard David Ebri as P.W.2. The plaintiff maintained as he pleaded that the signature ascribed to him in the cheques with which the sum of N331,000.00 was withdrawn from the account of the law firm was not his own; and not in accordance with the mandate given to the defendant vide exhibit 1. The photocopies of the cheque with which the total sum of N331,000.00 was withdrawn were tendered as exhibits 2, 3 and 4. Plaintiff however agreed that the signature of his partner Mr. Richard Ebri was on exhibits 2, 3 and 4.

In his evidence the plaintiff who testified as P.W.1 said: