Bank Of The North Ltd. V Bala Yau (2001)

LAWGLOBAL HUB Lead Judgment Report

O. ACHIKE, JSC. 

The plaintiff/appellant, a banker claimed against the defendant/respondent in Maiduguri High Court the sum of N494,593.39 being the debit balance as at 28/2/87 in the respondent’s account with the appellant bank plus 13% per annum compound interest on same from 28/2/87 to date of judgment and 10% simple interest per annum from the date of judgment until the whole judgment debt is fully paid. The appellant also claimed a declaration that moneys secured by deed of legal mortgage dated 1st day of May, 1979 over property covered by the certificate of occupancy No. BO/2167, created by the respondent to secure his borrowings from the appellants have fallen due for payment the appellant as unpaid mortgage was entitled to exercise its right of sale under the said deed of legal mortgage.

The main controversy between the parties arose from the appellant’s debiting the account of the defendant with the sum of N185,650.00 being the total value of the five cheques issued in favour of the respondent, which he paid into his overdraft account in Maiduguri and were despatched in normal banking business by the appellant for payment by the drawee bank, i.e. Kano-City branch of the Bank of the North Limited, Kano. The said cheques were alleged by the appellant to have been dishonoured and lost in transit but the respondent took benefit of the value of the said five cheques when neither the drawee bank in Kano paid the value of the said cheque nor was respondent’s account at Maiduguri credited with the value of the said five cheques. After due trial, the learned trial Judge held that the respondent’s account was properly debited with the said sum in question, i.e. the value of the five cheques.

Dissatisfied, the respondent appealed to the Court of Appeal, which by its judgment dated 16/6/93, allowed the appeal. It set aside the judgment of trial court, and held as follows:

‘(a) The respondent has failed to establish before the court below that the five cheques paid in by the appellant were in fact dishonoured.

(b) Having regard to the facts and circumstances relating to the said five cheques, it was right and proper for the respondent to have debited the account of the appellant with the total of the said cheque.

(c) The respondent has failed to discharge the onus on it of proving if anything was owing to it by the appellant out of the overdraft of N50,000.00 granted to the said appellant.

(d) The mortgage was executed as security for the aforementioned overdraft of the said N50,000.00.

(e) In the premises, the decision that the appellant shall pay the sum of N494,593.39 to the respondent with interest and the declaration that the respondent is entitled to the mortgaged property is set aside.’

It may be observed that the word ‘not’ is missing in (b) above between the words ‘was’ and ‘right’. There is inherent power in this court to correct its judgment or that of the lower court on appeal in order to avert any mischief that would otherwise arise in reading such judgment without the necessary correction. Therefore, suo motu, I effect this amendment to the judgment of the lower court as may be found at p.125 of the record in the manner hereinbefore stated.

The appellant’s learned counsel, Fatima Kwaku, Esq. postulated three issues for determination, namely,

‘i. Whether the issue of the ‘dishonour and subsequent loss’ of the five cheques has been specifically pleaded.

ii. Whether by his conduct both passive and active the respondent has not waived his rights under sections 47, 48 and 49 of the Bills of Exchange Act Cap. 15 of the Laws of the Federation 1990 and whether the respondent is estopped from denying such waiver.

iii. Whether the learned Court of Appeal Justices ought not to have come to the same conclusion as the learned trial Judge that the respondent is in law estopped from denying liability in the sum claimed having regard to the several unequivocal written admissions of liability made by the respondent himself and his counsel.’