Alhaji Muriana Adesola Kareem V. Union Bank Of Nigeria Ltd. & Anor (1996)

LAWGLOBAL HUB Lead Judgment Report

UWAIS, C.J.N.

The appellant herein was the 2nd defendant in an action brought by the 1st respondent, as plaintiff, claiming jointly and severally against the appellant and 2nd respondent (as 1st defendant) as follows:-

“(i) Declaration that the period for regarding, deeming and/or presuming a cheque presented for clearance through the Central Bank of Nigeria as cleared is four (4) working days.

(ii) Declaration that the sum of N885,000.00 held by the 1st defendant at Ibadan and deemed credited to the account of the 2nd defendant on 28th October, 1983 being proceeds on a cheque No. 066058 allegedly issued to the 2nd defendant and paid into his account with the 1st defendant is the property of the plaintiff.

(iii) An order compelling the 1st defendant to credit the account of the plaintiff through the Central Bank Clearing House, Ibadan with the said amount or any part thereof as money had and received – – an order against the defendants jointly and severally to refund the said amount or any part thereof direct to the plaintiff as money had and received.

(iv) An order that the defendants refund the said sum of N885,000 (sic) to the plaintiff as money had and received.”

The facts of the case may be stated thus. On or about the 26th day of October, 1983, a cheque leaf No. 066058 for the sum of N885,000.00 deposited with the 2nd respondent was received at the Branch of the 1st respondent at Agodi, Ibadan. The cheque which was drawn on the 1st respondent was purportedly issued by Messrs. Robatek Nigeria Limited – an industrial company with headquarters at Lagos, in favour of the appellant. On 27th October, 1993, the 1st respondent in attempt to balance its accounts for the previous day, discovered that the cheque was missing. This was at the close of the day. Consequently, the account for that day could not be balanced. On the following day, that is 28th October, 1983, a thorough search was made at the Branch and it was found that the amount of N885,000.00, which could not be accounted for, was represented by the missing cheque issued by Messrs. Robatek Nigeria Limited. When by 11.00 a.m. on that day it became clear that the cheque could not be traced, the Manager of the Branch contacted the Main Branch in Ibadan of the 1st respondent which is situate at Bank Road, Ibadan, in order to find out who it was that presented the cheque to the latter Branch. The Manager was informed that the cheque was lodged by the 2nd respondent and he immediately got in touch on telephone with the Manager of the 2nd respondent in Ibadan. The former requested the latter not to honour the cheque on the ground that it had been lost. But to his surprise, the Manager of the 2nd respondent stated that the cheque had already been honoured, the account of the appellant having been credited and that two cheques issued by the appellant for the sums of N150,000,00 and N75,000.00 had been paid out from the account to the appellant and his wife respectively. The payments were said to have taken place after the representative of the 2nd respondent returned from a session of the Central Bank of Nigeria Clearing House which took place earlier in the morning of that day.

The 1st respondent felt that the 2nd respondent was wrong in honouring the cheque because the stipulated period before payment on the cheque could be made was four working days. The 2nd respondent countered by contending that Banking Regulations required four clearing sessions of the Central Bank Clearing House to be held before the payment could be effected and that it acted accordingly. Hence the institution of the action by the 1st respondent against the appellant and the 2nd respondent jointly.

Pleadings were filed and exchanged by the parties. They were also amended in the case of the appellant and 1st respondent and further amended in the case of the 1st respondent. At the end of the trial before Ademakinwa J. of the then Oyo State High Court, the first arm of the 1st respondents claim was refused and the remaining arms of the claim were granted in the following terms:-

“In the result, the plaintiff bank succeeded on all the reliefs (except the first relief) claimed and it is hereby ordered as follows:-

1. Declaration that the sum of N885,000 (sic) held by the 1st defendant bank at Ibadan and deemed credited to the account of the 2nd defendant on the 28th of October, 1983, being proceeds on a cheque No. 066058 allegedly issued to the 2nd defendant and paid into his account with the 1st defendant bank is the property of the plaintiff bank.
2. That the 1st defendant bank shall credit the account of the plaintiff bank through the Central Bank Clearing House, Ibadan with the sum of N660,000 (sic). Alternatively, that both defendants shall jointly, and severally refund the said sum of N660,000 (sic) to the plaintiff bank as money had and received.
3. That both defendants shall jointly and severally pay to the plaintiff bank interest on the said sum of N660,000 at the prevailing fixed deposit rate with effect from 28th of October, 1983.
4. That the 2nd defendant shall refund to the plaintiff bank the sum of N225,000 (sic) withdrawn out of the proceeds of the forged cheque and shall pay to the plaintiff bank interest on the said sum of N225,000 (sic) at the prevailing fixed deposit rate with effect from the 28th of October, 1983.”

It came to light, in the course of the proceedings before the trial court, that the cheque for the sum of N885,000.00 purportedly issued by Messrs. Robatek Nigeria Ltd. was in fact not issued by the company. Also that the company had no account with the 1st respondent at the Agodi Branch of the latter in Ibadan. It is pertinent to quote here the observation made by the learned trial Judge, as relevant:-

“The next issue to be determined in this case is whether the cheque in dispute was forged. Forgery has been defined in section 465 of the Criminal Code, Cap. 30, Laws of Oyo State as the making of a false document or writing, knowing it to be false and with the intent that it may be used or acted upon as genuine.

By virtue of section 137(1) of the Evidence Act, Cap. 62, Laws of the Federation of Nigeria, if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. It follows therefore that the allegation that the cheque was forged must be proved beyond reasonable doubt.

It has not been possible to produce the cheque and the explanation offered for the failure is that the cheque is missing. I must say that I accept this explanation. That notwithstanding there is the evidence of the 2nd P.W. who maintained that Robatek (Nig.) Limited which was supposed to have issued the cheque to the 2nd defendant had no account with the plaintiff bank. The 2nd P.W. had also disclosed that No. 066058 which was supposed to be on the cheque was in fact the number for the cheque for the sum of N20 (sic) issued on the 22nd of November, 1982 by one G.A. Awolabi, who was a customer of the plaintiff bank. This cheque for N20 (sic) was tendered and admitted as Exhibit “V”.”