Diamond Bank Plc V. Dr. Levi Chulks Monanu (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment)

This is an Appeal against the Judgment delivered on 12/11/2007 by the High Court of Justice, Enugu State (hereafter simply referred to as “the lower Court”) presided over by Hon. Justice A. R. Ozoemena (hereafter simply referred to as “the learned trial Judge”). The Judgment appealed against was entered in favour of the Plaintiff by the learned trial Judge. The Plaintiff before the lower Court is now the Respondent in the instant appeal.

The case of the Respondent as set up in his Statement of Claim dated 4/12/1998 and filed on 7/12/1998 briefly stated are that the Respondent operates a current account No.391277028 with the Appellant at its branch at No.22 Okpara Avenue, Enugu. That the Respondent issued a cheque No.1450836 in the sum of N1,000,000.00 drawn on the account, to one Mr. J. Okpagu (hereafter simply referred to as “Okpagu”) for the purpose of clearing the Respondent’s goods to be imported from overseas. At the time of issuing the cheque, the Respondent had the sum of N978,718.09 only, in the account and the cheque was to be cashed only on the condition that the money would be used for the transaction. That the Respondent intended to pay additional sum into the account to enable Okpagu carry out the transaction upon the receipt of information from the said Okpagu that the goods were available to be released to him.

The said Okpagu went to the Appellant’s Branch at Onitsha whereat he got information from the Appellant’s staff that the cheque would be dishonoured if presented for payment and was advised by the Appellant to pay the sum of N70,000.00 into the Respondent’s account in order to cash the cheque issued to him. That on 9/4/1998, Okpagu deposited a cheque in the sum of N70,000.00 into the Respondent’s account and was paid the N1,000,000.00 by the Appellant the same day. That the Appellant by its actions enabled Okpagu to embezzle the Respondent’s N1,000,000.00 without rendering the services which the money was meant for. The Respondent alleged that the Appellant never consulted him or phoned him before paying the cheque that was drawn on his account, as it normally did.

That the Appellant by acting in the manner it did, breached the fiduciary relationship between the Appellant and the Respondent and has revealed the statement of the Respondent’s account to a third party which it should not have done. The Respondent claimed to have suffered great loss in that Okpagu collected both his money and his goods worth N5,000,000.00. In the premises, the Respondent claimed from the Appellant “the sum of N5,000,000.00 (Five Million Naira) General Damages for false manipulation of his account and loss of his money and goods”.

In its Statement of Defence dated 28/12/1998 and filed on the same date, the Appellant admitted that the Respondent maintains with it, the account mentioned by the Respondent in the Statement of Claim. The Appellant also admitted that it paid the cheque mentioned in the Statement of Claim in the sum of N1,000,000,00 and that it debited the Respondent’s account (which was adequately funded) with the amount thereof. The Appellant claimed that the Respondent’s cheque was regular on its face; it was duly drawn and signed in accordance with the Respondent’s instructions to it; and there were no conditions or other endorsements stated on the cheque. The Appellant denied using any information supplied to it by the Respondent for any purpose or in any manner than that for which it was held or supplied.

The Appellant claimed that it exercised due diligence in paying the cheque drawn on it by the Respondent, and cheque No.2004362 in the sum of N700,000,00 drawn on it by Okpagu. That both cheques, were paid in good faith and in the ordinary course of business. That neither of the cheques, was paid across the counter but each was deposited into the appropriate accounts of the payees and paid accordingly. The Appellant also claimed that it had no dealing with Okpagu as alleged by the Respondent or at all, but that it acted in good faith in the ordinary course of business with him. The Appellant not only denied that the Respondent suffered any loss of his money as alleged or at all and that the Respondent is fishing for damages, but also that it will rely on all statutory, equitable and legal defences open to it at trial.

Being dissatisfied with the Judgment of the lower Court, the Appellant on 15/11/2007 lodged a Notice of Appeal of the same date against the said Judgment. The Notice of Appeal contained the omnibus Ground of Appeal and the reliefs sought in the Notice as set out therein read thus:-

“1. An order allowing the appeal.

2. An order setting aside the Judgment of the lower Court delivered on Monday, 12th November 2007 in this suit.
3. An order dismissing the suit filed by the Plaintiff.
4. An order entering Judgment in favour of the Defendant/Appellant”

Pursuant to the Order of this Court made on 10/6/2009, the Appellant on 11/6/2009 filed an amended Notice of Appeal on the same date. The amended Notice of Appeal contains nine (9) Grounds of Appeal and the reliefs sought therein are ipsissima verba with those set out in the original Notice of Appeal (supra).

In accordance with the Rules of this Court, parties duly filed and exchanged Briefs of Argument. Appellant’s Brief of Argument dated 20/3/2008 and filed on 25/3/2008 as well as Appellant’s Reply Brief dated 10/8/2009 and filed on 13/8/2009 were settled by R. U. Ezeani; while Respondent’s Brief of Argument dated 9/7/2009 and filed on 10/7/2009 was settled by Igwe A. C. Onwu. The Appeal was entertained on 29/2/2012, and both learned Counsel for the parties adopted and relied upon the Briefs of Argument they filed on behalf of their respective clients as hereinbefore identified, in support of their positions in the Appeal.

The Appellant formulated three Issues for determination in the Appeal, in his Brief of Argument. The Issues are:-

“1. Was the learned trial Judge right in his decision that the Appellant was negligent and colluded with Mr. Okpagu?

(Grounds 1, 2, 3, 4, 5, 6 & 7)