Alhaji a. Olalekan V. Wema Bank Plc (2000)

LawGlobal-Hub Lead Judgment Report

TABAI, J.C.A.

This appeal is against the judgment of Adeniran J. of the High Court of Oyo State delivered on the 10th of October, 1994 in which the claim of the plaintiff/appellant was dismissed. The claim contained in paragraph 19 of the statement of claim was as follows:-

“1. Declaration that the failure or refusal of the defendant to pay the plaintiff the proceeds of the fixed deposit account covered by receipt No. 012823 of 27/1/92 which matured on the 27th January, 1993 amounts to a breach of contract.

2. Declaration that the defendant is liable to pay the plaintiff the principal sum plus interest thereon on the said deposit account up till the date of payment.
3. An order directing the defendant to pay the plaintiff forthwith the principal sum plus interest at the agreed rate up till the date of payment.
4. A further order directing the defendant to pay the plaintiff by way of damages enhanced interest on the principal sum at the rate of 8% per month less 17% per annum from 1st February, 1993 until the date of payment”.

The notice of appeal which was filed at the court below on the 19/12/94 contained the following grounds of appeal:-

“(i) The learned trial Judge erred in law when he held that, the plaintiff agreed that the sum of N2,000,000.00 was transferred to the account of Alsod Nigeria Ltd;

(ii) The judgment is against the weight of evidence.

(iii) The learned trial Judge erred in law when he held that the plaintiff was aware or ought to have been aware that the sum of N2,000,000.00 was transferred to the account of Alsod Nigeria Ltd. on the 7th February, 1992.

(iv) The learned trial Judge erred in law when he held that the plaintiff was estopped from claiming the amount he placed on fixed deposit with the defendant; and

(v) The learned trial Judge erred in law when he sat and delivered his judgment in Ibadan Judicial Division without a warrant so to do after his transfer to Ibarapa Judicial Division.”

In compliance with the rules of this court, Olujinmi SAN, filed the appellant’s brief of argument on the 19th May, 1995 and a reply brief on the 26th February, 1998. Mr. R. A. Ogunwole filed the respondent’s brief of argument on the 11th February, 1998. On the 19th October, 1999 counsel for the parties adopted and relied on the arguments contained in their briefs. From the five grounds of appeal learned counsel for the plaintiff/appellant formulated four issues for determination while respondent’s counsel raised three. In my view the four issues raised by the appellant adequately cover all the complaints in the five grounds of appeal. I would therefore adopt the issues formulated by learned counsel for the appellant. These are:-

“1. Whether the learned trial Judge was right when he held that the plaintiff agreed that the sum of N2,000,000.00 was transferred to the account of Alsod Nigeria Ltd;

2. Whether on the materials before the court, the trial Judge was right in holding that the plaintiff was aware or ought to have been aware that his fixed sum of N2,000,000.00 was transferred to the account of Alsod Nigeria Ltd. on the 7th of February, 1992;
3. Whether the learned trial Judge was right in upholding the plea of estoppel set up by the defendant; and
4. Whether the learned trial Judge who was at the time he delivered his judgment on the 10th of October, 1994, a Judge of Ibarapa judicial division, could sit in Ibadan judicial division without the warrant of the Acting Chief Judge to deliver his judgment.”

On issue 1, the substance of the argument of learned counsel for the appellant is that although the defendant/respondent pleaded in paragraph 14 of the statement of defence that the N2,000,000.00 fixed deposit was transferred to the account of Alsod Nigeria Ltd, the plaintiff did not agree either in his pleadings or evidence with the alleged transfer. He referred specifically to the evidence of the plaintiff under cross-examination when he denied knowledge of the said transfer. He further referred to paragraph 5 of the plaintiff’s amended reply to the statement of defence and contended that there was no basis for the learned trial Judge to read into it any agreement by the plaintiff to the alleged transfer. He submitted that since there is no evidence to support the learned trial Judge’s findings on the transfer, the finding cannot stand; and he relied on Borno Holding Co. Ltd. v. Bogoco (1971) 1 All NLR 324 at 326.

With regard to issue 2 it was the submission of learned counsel for the plaintiff/appellant that a company is at law a different person from its subscribers and relied on Salomon v. Salomon & Co. (1897) AC 22; and Ramanchandani v. Ekpenyong (1975) 5 SC 29. He contended therefore that Alsod Nigeria Ltd. is a distinct and different personality from the plaintiff. The entry “Credit transfer (others)” in Exhibit “F” did not, he argued, state whether it was the N2,000,000.00 fixed deposit or some other money that was transferred to the account of Alsod Nigeria Ltd., and that the oral evidence of DW3 and DW5 cannot be used to supplement Exhibit “F”. On this submission he relied on Bijou (Nig.) v. Osidarohwo (1992) 6 NWLR (Pt.249) 643 at 649. According to counsel the plaintiff/appellant only became aware of the transfer through Exhibit “C” which was the first official communication to him. He contended therefore that there was no evidence to support the finding of the learned trial Judge that the plaintiff/appellant was aware or ought to have been aware of the transfer.

With respect to the third issue it was submitted that before the defendant could rely on the plea of estoppel it must be specifically raised in the pleading and cited Adeniran v. Alao (1992) 2NWLR (Pt.223) 350. He contended that paragraph 22 of the statement of defence did not sufficiently raise the plea of estoppel and that there was also no evidence to support the plea. It was contended that the principle of estoppel could not apply since the learned trial Judge had found that the plaintiff/appellant did not authorise the transfer of the money. He argued that estoppel can only properly be raised in respect of an act done by a person and not one done by another person who is not his agent or privy. On the insufficiency of pleading he relied on Ibenwelu v. Lawal (1971) All NLR 23 (Reprint) at 27. He contended that the defendant/respondent was bound not only to plead estoppel with particulars but also the type of estoppel and relied on Nwobodo v. Onoh & Ors. (1984) 1 SCNLR (1984) 1 SC 1 at 37-38; Iga v. Amakiri & Ors. (1976) 11 SC 1 at 12-13; and Cross on Evidence 4th Edition page 285-301. On this issue of estoppel learned counsel identified four elements in Iga v. Amakiri (supra) at 12-13 none of which he argued, was established by evidence.