United Bank for Africa Plc V. Ekene Dili Chukwu (Nigeria) Limited & Ors (1999)

LawGlobal-Hub Lead Judgment Report

GALADIMA J.C.A. 

This is an appeal by the Defendant/Appellant against the decision of Uyanna, C.J., sitting in the Awka Judicial Division of Anambra State High Court contained in his judgment of the 6th day of October, 1994. The Plaintiff/Respondent’s claim against the Defendant/Appellant is for the sum of N360,000 being the amount which the plaintiff paid per Orient Bank of Nigeria Limited, Onitsha Branch Draft No.003512 of 24/4/89 in favour of the 3rd- Third Party (Panel on Recovery of Public Funds and Property, Anambra State Government) which the Defendant/Appellant paid to 1st- Third Party (Manuel Bradley Limited) and the 3rd – Third Party. The Plaintiff/Respondent claimed that this money was negligently paid and he therefore claimed this sum as damages and interest therefore at the rate of 30% until the said amount was paid.

It was by leave of the Court below that Manuel Bradley Ltd., Emmanuel Chigbo Nwogbo and Panel on Recovery or Public Funds and Property Anambra State Government were joined as 1st, 2nd and 3rd Parties respectively.

The Plaintiff/Respondent, the Defendant/Appellant and the 3rd – Third Party/Respondent exchanged pleadings. Although all the Third parties were served only the 3rd- Third Party/Respondent entered appearance and defended the claim of the Defendant/Appellant against them for indemnity and other claims.

During the trial the Court below reviewed the pleadings of parties, evidence of the witnesses and the submissions of counsel. At the conclusion of all the available evidence and the submissions of counsel the learned trial judge in a considered judgment held that the 3rd – Third Party never authorized the 2nd – Third Party to act for them as auctioneer to dispose of the vehicles in question nor had the 3rd – Third party any such vehicles to sell. He then found that the Defendant/Appellant were negligent as averred by the Plaintiff/Respondent and the 3rd – Third Party/Respondent in their respective pleadings as well as proved in evidence. Judgment was therefore given for the Plaintiff/Respondent for the sum of N360,000 as claimed, and interest of 5% per annum on the judgment sum.

The 3rd – Third Party was also found not liable to indemnify the Defendant/Appellant.

Dissatisfied with this judgment, the Defendant/Appellant (who will hereinafter be simply referred to as the “Appellant”) now appealed to this Court and has filed seven grounds of Appeal. The grounds without their particulars are as follows:-

1. Error of Law

The learned trial judge erred in law in holding that the respondent had a cause of action in negligence at p.8 of the judgment as follows”…I am satisfied in coming to the conclusion without difficulty that the defendants did not make the necessary enquiries or take the anticipated precautions as a prudent Banker in opening the account in the joint names. The case against the defendants is strengthened by their paying the proceeds of the draft contrary to the expressed endorsement on the draft in conformity with the accepted Banking practices. In this, they were negligent…”

2. Error of Law

The learned trial judge erred in law in failing to uphold the contention of the Appellant bank that negligence on its part in opening account for its customer or in collecting a cheque for a customer could not by virtue of Section 77 or 82 of the Bills of Exchange Act (Cap. 35), Laws of the Federation of Nigeria, 1990, give rise to an action in negligence against the bank but would merely disentitle it to the protection of the said section.

3. Error of Law

The learned trial judge erred in law in failing to consider the appellant’s contention that even if the respondent had any legal claim against the appellant, it should equally not succeed, in view of the defence or ex turpi causa non oritur actio available to the appellant.

4. Error of Law

The learned trial judge erred in law in failing to find that Orient Bank Draft, the subject matter of the action, was a bill made in favour of a fictitious payee and that by virtue of the provisions of Section 7(3) of the Bills of Exchange Act (Cap. 35) Laws of the Federation of Nigeria, 1990 was in the circumstances of this case properly treated by the Appellant as payable to the bearer.

5. Error of Law

The learned trial judge erred in law in failing to hold that the appellant is entitled to protection of Section 77(2) (e) of the Bills of Exchange Act.

6. The judgment of the learned trial judge was given in a hurry and was not a considered decision, in view of his dictum at page 7 of the judgment as follows:-

I have taken pains within the short compass of time at my disposal to review the pleadings of the parties, the evidence of the witnesses and the submissions of counsel.”

The major submissions of and the authorities cited by the appellants counsel were neither mentioned nor considered in the judgment.