Barclays Bank Of Nigeria Ltd Vs Alhaji Maiwada Abubakar (1977) LLJR-SC
Barclays Bank Of Nigeria Ltd Vs Alhaji Maiwada Abubakar (1977)
LawGlobal-Hub Lead Judgment Report
OBASEKI, JSC.
In the High Court of the Kano State holden at Kano, the appellant as plaintiff initiated these proceedings claiming against the respondent as defendant “(1) The sum of N43,334.48 being moneys lent to and moneys paid by the Plaintiff as Bankers to the Defendant at his request and for interest on the moneys due from him and foreborne at his request and money found to be due from the defendant to the Plaintiff;
(2) Interest at the rate of 10 percent per annum as from 11th July, 1974 until judgement; and (3) Interest at the rate of 5 per cent per annum from the date of judgment until the judgement is fully satisfied.” Pleadings were ordered and duly delivered and from the Statement of Claim, it is clear that the claim was founded on the account stated. In particular, paragraph 4 of the Statement of Claim reads: “The Plaintiff in keeping with its practice with customers’ account forwarded regular statements of account to the defendant and the defendant has never queried the said statement of account and has always admitted owing the Plaintiff.
The statement of account of the Defendant is attached to this Statement of Claim and marked Exhibit A and the Plaintiff will reply on this statement of account at the trial.” (Underlining ours) The Defendant in paragraphs 4 of his amended Statement of Defence denied paragraph 4 of the Statement of Claim and went on to plead in paragraph 5 of the Statement of Defence as follows: “The defendant will contend at the trial that the defendant did not authorise the Plaintiff to credit or debit the defendant’s current account opened with the Plaintiff on the 31/8/72 with the statement of account of any of Plaintiff’s customer or customers.”
Throughout the hearing, the main contention of the defendant was that the plaintiff wrongly debited his account with the value of some drafts purchased by Mecca and Medina Travelling Agency which he operated and of which he was a director, without his instructions. At the hearing, two witnesses testified at the instance of the plaintiff. The defendant testified denying owing any amount or receipt of monthly statement of account from the bank. Alhaji Ibrahim Usman Wudil who had testified at the instance of the plaintiff as P.W.1 was called by and also testified at the instance of the defendant. At the conclusion of the hearing, the learned trial Judge entered judgment in favour of the plaintiff for a reduced amount in the last paragraph of his judgment as follows: “The defendant is therefore liable to the Plaintiff for the debit balance shown on Exhibit E less the amount in Exhibit F2 (£3285) and Exhibit F14 (£6,321) which comes to £9,606 (N43,334.48) less amount in Exhibits F2 and F14 N19,212.00 = N24,122.48.
I accordingly enter judgment for the Plaintiff in the sum of N24,122.48 with interest at the rate of 10 per cent per annum from 11th day of July 1974 till today. The plaintiffs are also entitled to claim 5 per cent court rate from today until judgment debt is satisfied.” (Underlining ours) Neither the plaintiff nor the defendant was satisfied with the judgment and being aggrieved, each has appealed and being aggrieved, each has appealed from the said judgment to this court.
The plaintiff’s appeal was on two grounds which read as follows: “(1) The learned trial Judge erred in law and on the facts when he held that the Defendant was liable to the Plaintiff in the sum of N43,334.48 less amounts in Exhibits F2B and F14 which the defendant did not sign, when in fact the Defendant’s account (Exhibits C and E) did not show that the defendant’s account was debited with the amount shown in the said Exhibits F2B and F14 and when Exhibit F2B was not properly before the court (2) Judgment is against the weight of evidence”.
The defendant filed several grounds of appeal but the grounds of appeal argued before us are: “(1) That the judgment is against the weight of evidence; and (2) (added with leave of the court) That the learned trial Judge erred in law and on the facts by holding “that the plaintiff can claim interest at the rate of 10 per cent per annum on the overdraft in respect of requisitions in Exhibits G2, G3 and G4 whereas there was no evidence that the defendant agreed to the rate of interest or knew that his account was being overdrawn.”
We shall now proceed to deal with the plaintiff’s appeal before considering the points raised in the defendant’s appeal. We observe that the main complaint of the plaintiff is that although Exhibits F2B and F14 were tendered along with the other exhibits, the amount £3285 shown in Exhibit F2B and £6321 in Exhibit F14 which were the requisitions for drafts were not debited against the account of the defendant and no debit notes in respect of these amounts were issued by the bank as were in evidence.
This was, according to counsel, because they were cash transactions and unlike the other Exhibits of F and G series there was no instruction from the defendant to debit his account with these amounts.
He further drew our attention to the fact that the statement of account for the relevant period Exhibit C on which the action was based did not contain any entry of those two amounts. He observed that the learned trial Judge may have been mis-led (1) by the evidence of plaintiffs’ 2nd witness (who tendered the documents) when he said inter alia “I can identify the Pilgrims’ list and the requisitions signed by the defendant. I see these documents, they are the Debit notes, I am referring to, together with the pilgrims’ list. There are 14 of them. Majiyagbe: I seek to tender them in evidence Alabi: I have no objection Court: The 14 documents each consisting of debit notes, draft requisitions, list of pilgrims tied together are hereby admitted and marked Exhibits F1 – 14 “I see Exhibits F1-14, they cover the period dated December, 1972 all of them bear the same month. I see amount in Exhibits F1-14 (read out and checked against Exhibit C) the figures of the amounts on them all appear in Exhibit C.” and (2) by the defendant’s evidence which inter alia reads: “I see Exhibits F1-14.
In Exhibit F2B the signature for draft 30 for £3285 is not mine. In Exhibit F14 the signature on the bill of draft for £6,321.0.0 is not mine. In F11 the signature on the bill of draft No. 159 of 27/12/72 for £22069.0.0 is also not mine. The rest of the Exhibits have my signature on all of them.” (Underlining ours) which gave the impression that Exhibit F2B and Exhibit F14 had debit notes.
The learned counsel for the defendant in reply contended that if there was any error, it was as a result of the evidence of P1W.2 The portion of the judgment where the learned trial Judge held that the amounts in Exhibits F2B and F14 were erroneously debited to the account of the defendant and where he proceeded to deduct them in order to arrive at the ‘true’ balance reads: “Having accepted Exhibits C and E as certified copies of the Defendant’s statement of account compared and checked with the books, I find that prima facie the defendant is owing the Plaintiffs the amount shown on Exhibit E which was the last statement to be prepared. I say that the Defendant is owing the amount shown on Exhibit E prima facie because he can bring rebutting evidence to show that he is not owing the amount shown on the statement.
The last amount shown on Exhibit E which is a continuation of Exhibit C is PAGE| 5 43,334.48k, and this is what the Plaintiffs are claiming from the Defendant. …………………… In this case the Plaintiffs alleged that the Defendant signed all requisition forms on Exhibits F1-14 and Exhibits G1-4 and that his account was debited with the amount shown on the requisitions. The various amounts on the requisitions have been shown by evidence of P.W.2 to have appeared in Exhibit C. This statement was found correct. The defendant however admitted signing the requisition form on Exhibits F1, 2A, 3-10, F12 and 13 but that he was deceived into doing so by the plaintiffs’ employees. I have carefully compared the signature on Exhibit F11 with those on the above and I disbelieve the defendant when he denied signing Exhibit F11. I accept the evidence of P.W.1 and P.W.2 that he signed those requisitions on his own volition.
………………….. I also accept the defendant’s evidence that he did not sign the requisition forms on Exhibits F2B and F14, the total amount of which added up to £9,606 (N19,212.00) ………………………………………………….. The defendant is liable to the plaintiff for the debit balance shown on Exhibit E less the amount in Exhibit F2B (£3285) and Exhibit F14 (£6,321) which comes to £9,606 (N19,212.00)” (Underlining ours) We have ourselves examined Exhibits F2B and F14 as well as the oral evidence of P1/W.2 and found that the documents did not include any debit notes. Similarly, we have examined Exhibit C to see if the amounts stated in Exhibit F2B and Exhibit F14 appear in the debit column and are satisfied that the aforesaid amounts did not appear at all in the s
Other Citation: (1977) LCN/1874(SC)