Diverse Assets Management Limited & Ors v. Wema Bank Plc (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

HELEN MORONKEJI OGUNWUMIJU, JSC (Delivering the leading judgment)

This is an appeal against the judgment delivered on the 6/7/2006 by the Court of Appeal, Lagos Division Coram; I. A. Salami (JCA), R. C. Agbo (JCA) and P. A. Galumje (JCA) (as he then was) in appeal No. CA/L/168/2004 wherein the court below allowed the respondent’s appeal. The facts that led to the appeal are as follows:

By a writ of summons dated 4/10/2001, the respondent, as plaintiff in the trial court commenced an action against the appellants as defendant’s claiming the following reliefs:

i. The sum of N32,724,495.77 being the amount owing and outstanding as at 31st July, 2001 by the appellants on accounts of the unpaid overdraft and importation facilities of N30 million which were granted by the respondent to the 1st appellant and secured with the personal guarantees of the 2nd and 3rd appellants.

ii. Interest on the said sum of N31,724,495.77 at the rate of 35% per annum from July 31, 2001 up till date of judgment and thereafter at the rate of 25% per annum until the judgment debt is fully satisfied by the appellant.

At the continuation of the hearing of the suit on 19/2/2004, the respondent’s only witness, PW1 identified a statement of account.

Thereafter, the respondent’s counsel sought to tender the identified statement of account in evidence. However, the appellants’ counsel objected to the admissibility of the statement of account on the ground that no foundation had been laid for the admissibility of the document. Respondent’s counsel contended that PW1 is an officer of the respondent’s bank and the statement of account brought to be tendered emanated from the bank. The respondent’s counsel then applied and sought to withdraw the document. The trial Judge refused the respondent’s request to withdraw the statement of account from evidence. The trial Judge thereafter delivered a ruling rejecting the statement of account as inadmissible and marking same “rejected”.

Dissatisfied with the decision of the trial Judge, the respondent filed an appeal to the Court of Appeal vide a notice of appeal dated the 1st day of March, 2004.

At the hearing of the appeal, briefs of argument were adopted and relied upon. In the appellant’s brief (respondent in this suit), there was an indication to abandon ground 2 of the grounds of appeal. The appellant therefore formulated a sole issue for determination which is:

“Was the learned trial Judge right when she refused the appellant’s counsel’s request to withdraw the tendered statement of account.”

On the other hand, the respondents (appellants in this suit) identified two issues for determination to wit:

i. Whether or not the conditions precedent to the admissibility of statement of accounts as contained in section 97(1)(h) and (2)(e) of the Evidence Act have been complied with.

ii. Whether or not the learned trial Judge afforded the appellant’s counsel reasonable opportunity to the objection of the respondent’s counsel before rejecting the document.

On 6/7/2006, the Court of Appeal delivered its judgment and held in favour of the respondent.