Alhaji A. Olalekan Vs Wema Bank Plc (2006)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

The plaintiff/appellant’s claims in the trial court as formulated in the statement of claim at pages 33 paragraph 19 of the record are 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. 012825 of 27/1/92 which matured for payment on 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 trial court dismissed the claims after issues were joined and evidence was heard from both sides. The plaintiff appealed to the Court of Appeal which also dismissed the appeal. Thus, the appeal herein is against concurrent findings of the two courts below. The three issues that have been formulated at the instance of the plaintiff/appellant for the determination in this appeal are:

1. Whether the lower court was right to make findings contrary to the findings of the trial court which were not appealed against.
2. Whether the lower court gave a proper consideration to the appellants’ complaint on the issue of estoppel.
3. Whether it was right for the lower court to raise and decide an issue not arising from the appellant’s ground of appeal.

The respondent for its part similarly proffered three issues for this court’s determination, to wit:

1. Whether the lower court was right to make findings contrary to the findings of the trial court which were not appealed against.
2. Whether the lower court gave a proper consideration to the appellant’s complaint on the issue of estoppel.
3. Whether it was right for the lower court to raise and decide an issue not arising from the appellant’s ground of appeal.

I will consider appellant’s issue Nos. 1 and 2 together which in turn cover grounds 1, 2, 3 and 4 of the grounds of appeal thus: At page 133 lines – page 134 lines 1-4, the learned trial Judge held as follows:

“There is however nothing on the face of the documents to show that the plaintiff authorised the transfer. The oral instruction which the defendant claimed was given by the plaintiff was vehemently denied by him. Moreover, the plaintiff was still in possession of exhibit A, the fixed deposit receipt. At the time the defendant said the plaintiff gave the oral instruction it did not demand for the surrender of exhibit A before the instruction was carried out. Considering the position as at 7/2/92 when the said sum of N2,000,000.00 was transferred from plaintiff’s personal account to the account of Alsod Nigeria Limited there is nothing to show that the plaintiff authorized the transfer.”

There was evidence on record that as a valued customer of the respondent, he was given preferential treatment because the appellant did not give any written instruction to transfer the sum of N2,000,000.00 from the account in the name of the appellant. In effect, as at 7/2/92, there was no document to back up the transaction.

The learned trial Judge did not stop at 7/2/92. He went on by observing:

“I will however go further to consider the events that followed.”

After enumerating the events/transactions that took place after the money had been transferred to Alsod Account in order to discover whether indeed the appellant was aware of the transfer, the events took the following order of sequence:

(i) The defendant deducted the sum of N401,438.57 from money transferred to Alsod Nigeria Limited and transferred same to its Agodi Branch to meet the indebtedness in the three accounts at the branch.

(ii) Alsod Nigeria Limited was in debit N2,308.58 as at 6/2/92, but when the transfer of N2,000,000.00 was made on 7/2/92, it was in credit of N1,979,691.42 as per exhibit F which was sent to the plaintiff/appellant and which he tendered.

(iii) When the sum of N401,438.57 was deducted, the company’ had a credit balance of N1,578,252.85.