Ben Ifeanyichukwu Okafor V. Union Bank of Nigeria Plc (1999)

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SANUSI, J.C.A.

This is an interlocutory appeal against the ruling delivered on 1st July, 1997 by Shitta-Bey J, of the Lagos Division of the Lagos State High Court. The claim of the appellant who is the plaintiff in the court below as per his writ of summons is as below:-

(a) The sum of N2,500,000.00 (Two Million, Five Hundred Thousand Naira only) being special and general damages for the defendant’s negligence in wrongful and/or willfully, failed and/or refusing to pay or honour the plaintiffs cheque No. 00081 of Account No. 032154924 – 0232362502 dated 3rd August, 1993 drawn on the defendant Bank in favour of Prince Ani Orizu a valued business trading associate and customer and thereby causing the plaintiff damage.

(b) The defendant has failed and/or neglected to pay the said damages despite repeated demands.

Pleadings were filed and exchanged. Trial commenced in earnest at the court below on 1st July, 1997. The plaintiff (Appellant) opened his case and started to give evidence concerning the said cheque No. 00081 and identified same in the court. However even before his counsel sought for permission to tender it in evidence the defendant/respondent counsel objected on the ground that there were some endorsements on the said cheque which his client did not make. The learned trial Judge went ahead to deliver a short ruling rejecting the said cheque as follows:-

“In view of the endorsements on the cheque which is contrary to pleadings in this suit, the said cheque is hereby rejected” see pages 13-14 of the record of proceedings.

It is pertinent to note that the short ruling reproduced above was delivered before the said cheque was tendered in evidence by the plaintiff/appellant’s counsel. I shall come to that later. Dissatisfied with this ruling, the appellant appealed to this court. He filed four grounds of appeal out of which he distilled four issues for determination in this appeal. The four issues are as follows:-

1. Whether the learned trial Judge was right in the ruling of the High Court rejecting the admissible evidence of cheque No. 00081 tendered by the appellant in evidence.
2. What is it that is required to be pleaded in respect of a cheque on the pleading, whether every material particular written on the cheque or details of every marks, letter, figures or endorsements on the cheque or document itself. In other words, is it the law to reproduce every character, marks, letters figures or endorsements on acheque on the pleading when the document itself is pleaded.
3. Whether the respondent bank can be the only one who can make endorsements on a cheque to which it is not the drawer or the drawee.
4. Whether there was sufficient and credible evidence from the respondent pleadings before the High Court to warrant the rejection in evidence of the material and relevant cheque No. 00081 which is also admitted by the respondent in the pleading.

The respondent on the other hand formulated only one issue for determination which reads thus:-

“Whether having regard to the position of the pleadings and the relevant laws governing admissibility in this country, the trial Judge was right in rejecting the cheque in question.”

In my humble view the issue for determination formulated by both counsel can be narrowed to only one which can be formulated thus:-

“Whether the learned trial Judge was right in rejecting or refusing to admit the cheque because of the endorsements thereon which were not pleaded.”

The relevant averments in the pleadings which gave rise to the ruling appealed against are reproduced below for purpose of clarily and ease of reference.

The appellant/plaintiff in paragraph 4 of his statement of claim avers thus:.

“On 8/3/93 the plaintiff drew a cheque No. 00081 upon the defendant bank being the plaintiffs bankers for the sum of N24,000.00 (Twenty Four Thousand Naira only) payable to Prince Ani Orizu or order in payment or settlement of a trade debt due to the said Prince Ani Orizu who at all material times is a business associate and/or customer of the plaintiff.”