E.D. Tsokwa & Sons Company Ltd. V. Union Bank Of (Nig.) Ltd. (1996)

LAWGLOBAL HUB Lead Judgment Report

WALI, J.S.C. 

The claims of the appellant as set out in his Amended Statement of Claim are as follows:-

“(1) A declaration of the court that the plaintiff is not indebted to the first defendant to the sum of N736,812.29 as at 31st March, 1983.

(2) A declaration that the defendants were in error when they charged/debited the plaintiff’s account with interest of N117,939.91 – calculated on disputed sum/debt from 5/6/81 to 3/3/83.

(3) A declaration of the court of the actual financial position of the plaintiff at the defendants’ branch Gboko.

(4) An order of the court compelling the defendants to rectify their books of accounts to reflect the actual indebtedness of the plaintiff as at 31st March, 1983.”

The respondent in answer to the Amended Statement of Claim filed an Amended Statement of Defence in which the crucial averments in the said Amended Statement of Claim were denied.

After pleading were settled, the case went to trial in which each side called witnesses to prove the averments in his pleading. Learned counsel for both the appellant and the respondent addressed the court to buttress the cases they presented and thereafter the learned Judge adjourned the case for judgment. In his reserved judgment delivered on 20th March, 1986, the learned trial Judge found in favour of the appellant as follows:-

“In the light of the above I hold that the plaintiff have proved quite substantial part of their claim on a balance of probability. They are entitled to judgment. I therefore grant a declaration that the plaintiffs are not indebted to the defendants in the sum of N736,812.29 as at 31st March, 1983. I found as a fact that the plaintiffs are indebted to the defendants in the sum of N116,717.00. How I arrived at this figure are carefully set out above.

2. I further declare that the defendants can only calculate interest on the debt of N116,717.00.
3. The defendants are hereby ordered to rectify their books of account to reflect the findings of the court.”

Dissatisfied with the judgment of the trial court, the respondent [then as appellant] appealed against it to the Court of Appeal. At the end of the exercise before it the Court of Appeal unanimously allowed the appeal in part. Adio JCA [as he then was] delivered the judgment of the court in which he concluded:-

“In the circumstance, this court affirms the declaration granted by the trial court to the respondents that they were not indebted to the appellants in the sum of N736,812.29k as at 31st March, 1983, and the order made by the trial court requiring the appellants to rectify their books of account to reflect the findings of the court. The finding of the trial court that the respondents were indebted to the appellant in the sum of N116,717.00 and its declaration that the appellants could only calculate interest on the debt of N116,717 .00 are hereby substituted with a declaration that the respondents are indebted to the appellants in the sum of N456,717.00 as at 31st March, 1983 and a further declaration that the appellants are entitled to calculate interest on only the aforesaid debt of N456.717 respectively. The declarations and the order of the trial court, as modified or varied in the manner mentioned above, are or should be as follows:-

1. The plaintiffs/respondents are granted a declaration that they were not indebted to the defendants/respondents in the sum of N736,812.29k as at 31st March, 1983.
2. The plaintiffs/respondents are granted a declaration that they were indebted to the defendants/appellants in the sum of N456,717.00 as at 31st March, 1983.
3. The plaintiffs/respondents are granted a declaration that the defendants/appellants are entitled to calculate interest on only the aforesaid debt of N456,717 .00.
4. The defendants/appellants are hereby ordered to rectify their books of account to reflect the judgment.”

Aggrieved by the Court of Appeal decision, the plaintiff as appellant and the defendant as respondent filed appeal and Cross – appeal respectively to this Court.

I deem it pertinent at this stage to state in brief, the facts involved in this case which are as follows-

The appellants were bankers while the respondents were their customers at the Gboko branch of the appellants in which they had current accounts. The appellants were operating the current accounts for the purpose of and in connection with their business. In the process, the appellants paid several cheques into the accounts and also withdrew large sums of money, with the connivance of the respondent’s manager to the equivalent of the sums to which the cheques were related in most cases. Some of the aforesaid cheques paid into these accounts and against which the appellants withdrew money were lost and, therefore, not presented to the banks on which they were drawn. The loss of these cheques was not brought to the appellant’s notice. As a result, he sought for declaration stated in paragraphs 18(1), (2) (3) and (4) of the Amended Statement of Claim [supra].

Learned Senior Advocate filed and exchanged briefs which were orally elaborated upon on the day the appeal was heard.

In the brief filed on behalf of the appellants, the following two issues were raised for consideration and determination by this Court:-

“(i) Whether, in the circumstances of this case, the plaintiffs are discharged as drawers of the relevant cheques by reason of the provisions of S.48 of the Bills of Exchange Act.

(ii) Whether the court below was correct in reversing the decision of the High Court regarding the sum of N44,820.00.

In the brief filed by the respondent, no new issues were formulated as regards the main appeal, but however raised the following two issues in the cross-appeal-

“(i) On whom did the onus of proof of the value of the three cheque drawn by the plaintiff/respondent lie

(ii) Was the plaintiff obliged to pay the cost of preparing the mortgage deeds”

In the brief of the respondent, Learned Senior Advocate raised a preliminary objection as regards the competence of the second Issue in the appellant’s brief contending that it involves a question of mixed law and fact for which no prior leave was sought for and obtained. He therefore urged this court to discountenance all arguments advanced in support of that issue.

On page 154 of the record, Learned Senior Advocate for the appellant, in an application dated 12th September, 1988 sought leave of the Court of Appeal “to appeal (in so far as the appeal concerns questions other than questions of law alone) to the Supreme Court from the decision of the Court of Appeal herein delivered on 1st day of July, 1988.”

This application was granted on 21st September, 1988 as per the Court of Appeal order contained on page 156 of the record which reads:-

“It is Hereby Ordered:

(1) That the application for leave to appeal to Supreme Court is granted.”

The application was made and granted within the statutory period of three months from the date of delivery of judgment and therefore in order. The preliminary objection must be as a result of over-sight and is accordingly over – ruled.

Learned Senior Advocate for the appellant took the two questions he raised in his brief together. He quoted in extenso the findings of the learned trial judge relating to the three cheques drawn by the appellants on their first Bank Yola account and paid into their account with the defendant’s Branch in Gboko on different dates to wit:

(a) On 9th June, 1980 a cheque for N150,000.00 drawn on First Bank Yola.

(b) On 3rd October, 1980 a cheque for N90,000.00 drawn on First Bank Yola.

(c) On 1st September, 1981 a cheque for N100,000.00 drawn on First Bank Yola.

The respondents complained that their manager against established banking practice credited the appellants’ account with the three sums (supra) and allowed them to immediately withdraw the said amounts without first clearing the cheques with the First Bank, Yola. The appellants also complained that the respondents did not notify them that the cheque in question were lost in transit until after one year, seven months and six months respectively and submitted that that was a breach of S.48 of the Bills of Exchange Act and that the respondents were vicariously liable for the ensuing loss sustained by the appellants resulting from the reckless acts of their servants, particularly their branch Manager who the appellants claimed was dismissed in order to cover up the fraud perpetrated on the appellants. Learned Senior Advocate therefore submitted that the Court of Appeal was wrong in its conclusion on this issue that the loss of the cheques (supra) the value of which the appellants had already withdrawn from their accounts with the respondents without corresponding evidence that the appellant’s account with the First Bank Yola was debited with the value of the cheques aforesaid did not cause any loss to the appellants.

On question II which is the second Issue raised in the appellant’s brief, Learned Senior Advocate adopted his same style of arguments on Issue I by quoting in extensio the findings and conclusion of the trial court as well as that of the Court of Appeal relating to the said issue.

It was the contention of the learned Senior Advocate that since D.W3 who was the Manager of the defendant on the date he testified admittedly accepting lodgment of Union Bank of Nigeria, Gboko Cheque No. 362037/055593 for N44,820:00, the Court of Appeal ought not to have disturbed the findings of the learned trial judge that the defendant were vicariously liable to the appellant in the said sum. He submitted that since the enactment of the Bills of Exchange [Amendment] Act 1964, cheques presented for payment through a bank to a customer’s account do not require any endorsement, even if the customer’s name as payee is not on the cheque. He therefore urged that the appeal be allowed.

In reply to the Issue I relating to the three cheque drawn by the appellants on First Bank of Nigeria Yola the total sum of which is N340,000.00, it was the contention of Chief Ajayi Learned Senior Advocate appearing for the respondents that the pleading of the appellants did not disclose sufficient materials in relation to the said cheques to enable anyone to reasonably infer that the appellants would be relying on S.48 of the Bills of Exchange Act Cap.21, Laws of the Federation of Nigeria which is now Cap 35 Laws of the Federation of Nigeria 1990. He submitted that the decision of the Court of Appeal that the appellants could not shift position to rely on S.48 which was not pleaded could not be faulted. Learned Senior Advocate also said there was no appeal against this finding of the Court of Appeal and therefore appellants could not rely on S.48 of the Act. He cited Odiase v. Agho (1972) 1 All NLR 175 in support. He went on to submit that the Court of Appeal rightly found that S.48 of the Bills of Exchange Act was not applicable to the facts of this case in that:-

(i) The section only applies to cases where a Bill has been dishonoured by non-acceptance or by non-payment.

(ii) That the cheques drawn on the first bank Yola were never presented to the said Bank for payment for the reason that they got lost.

The comment by Adio JCA (as he then was) as regards the applicability of S.50(2) (c) (i) of the Bills of Exchange Act, was an obiter and not the basis of the Court’s decision. Chief Ajayi SAN further submitted that the Court of Appeal reviewed the undisputed facts in this case surrounding the three cheques and came to the correct conclusion that the appellants lost nothing since their account with the First Bank of Nigeria Yola was not debited with the same. He again contended that the appellants did not appeal against this finding.

On Issue II relating to the cheque of N44,830.00 drawn on Union Bank of Nigeria Gboko and paid into the respondents by the appellants, Learned Senior Advocate submitted that the appellants did not advance arguments in support of the proposition that a bank which received a cheque for payment that had no account with it and did not credit same to the person the payer of the cheque could claim the value of the same from the bank. He therefore urged this court to dismiss the appeal.

Reading the pleadings as a whole to wit the Amended Statement of Claim and the Amended Statement of Defence, it could be discerned therefrom that the appellants intended to rely on the provision of S.48 of the Bill of Exchange Act. But that not withstanding, S.48 of the Act comes into play when only a cheque is dishonoured and not lost. The respondents in their evidence in support of their pleading went on to show that they could return not the three cheques to the appellants because they were lost. The appellants claimed that the respondents dismissed its Manager to defraud the appellants. The respondents on their part denied the allegation and averred that the Manager connived with P.W.3 the Managing Director of the appellants to destroy the cheques. The appellants alleged fraud against the respondents and it was their duty to prove the allegation in conformity with the standard of proof in criminal cases. See Nigerian Ports Authority v. Construzioni Generali Farsura Cogefar Spa & Anor. (1974) 12 SC 81 and Okuarume v. Obabokor (1965) 1 All NLR 360. This evidence was lacking, the respondents had no duty to prove the appellants case for them. In civil cases it is the duty of the plaintiff to prove his case to the standard required but not to rely on the weakness of the defendant’s case.

Returning to the value of the three cheques which the appellants claimed, I have already said that S.48 of the Bills of Exchange Act is not available to appellants since the said cheques were lost but not dishonoured. It was common ground that the three cheques were issued by the appellants in favour of themselves on their account at the First Bank of Nigeria Yola and paid into their account with respondents. The evidence proved that the appellants were allowed to withdraw the amount in dispute by the respondents before the three cheques were cleared which consequently got lost. It was in evidence by P.W. 1 that E.D. Tsokwa (P.W.3) is the sole signatory of the appellant’s two accounts with the respondents. P.W.2, the Accountant employed by the appellants to audit their Accounts with respondent and in relation to the three cheques testified as follows:-

“The unauthorised debits are made up to eleven items, four cheques and seven transfers. The first cheque is for N150,000.00. It was lodged in by the plaintiffs, defendants credited it, and reversed over a year later. The plaintiffs had treated the cheque as cleared but it was reversed after the statutory period. The defendants had not power to do so. It forms part of over-all debit balance.

The second cheque was for N90,000 which was reversed after two months of lodgment. The third one was for N 100,000, this was reversed after six months. It was lodged on 9th February, 1981 and reversed on the 1st September, 1981. It forms part of over-all debit balance.

Under cross examination the witness admitted that at the time he audited the appellant’s accounts with the respondents he was a pupil accountant, it was he that prepared Exhibit “J” the appellant’s statement of account based on the documents given to him by the appellants.

On Exhibit D which was the purported Statement of account sent to them by respondents, D.W.3 testified on it thus under cross examination:-

“We used certain stamps in our office …… Exhibit D was not signed. The figures cannot be taken to be correct. Exhibit D is not authentic even though it emanates from our office. This is because it was not signed.

The evidence led by the respondents that the three cheques were lost was neither challenged nor contradicted. There was no evidence that the amounts equivalent to the ones on Exhibits A, B and C respectively and drawn by the appellants on their account with First Bank of Nigeria Yola was debited, despite the fact that the same were paid into Appellant’s Account I with the respondents and their value withdrawn by them with the active connivance of the respondent’s Manager who was dismissed by the respondents for other such similar malpractices. Both the drawer and the payee in the instant case are the same person. The appellants cannot escape liability when the cogent and undisputed evidence by the respondents was that non-presentment of Exhibits A, B and C was due to circumstances beyond their control and not attributable to negligence on their part S.46(2) (a) of the Bill of Exchange Act provides as follows:-

46(1) . …………

(2) Presentment for payment is dispensed with –

(a) Where, after the exercise of reasonable deligence, presentment, as required by this Act cannot be effected;”

See (1) A.I. Egbunike

(2) Maria Gold Obiageli

Egbunike (Trading as Metropolitatn Paints and Chemicals Co.) v. African Continental Bank Ltd. (1995) 2 NWLR (Pt.375) 34 at 48.

Where Adio JSC in the lead judgment of the court said on a similar issue:-

“In the circumstance, the presentment, of the cheques for payment could not reasonably be expected having regard to the dishonourable conduct of the then Manager of the respondent who happened to be a brother of the first appellant. Consequently, Section 41(3) of the Bills of Exchange Act becomes applicable. Paragraph (b) Section 41(3) of the Act excuses presentment of a bill of exchange for acceptance and such bill may be treated as dishonoured by non acceptance where, after the exercise of reasonable diligence, such presentment cannot be effected. Presentment for payment is also dispensed with under Section 46(2)(a) of the Act where, after the exercise of reasonable diligence, presentment for payment cannot be effected.”

Accordingly the learned Justices conclusion on Exhibits A, B and C that the appellants (then as respondents) are liable for the total sum of N340,000.00 cannot be faulted. I therefore answer Issue I in the negative.

The controversy in Issue II involves Exhibit “E” with which a cheque to the value of N44,820.00 drawn on the Union Bank of Nigeria, Gboko by a customer in favour of E.D. Tsokwa and Sons. Exhibit E is the Bank Teller with which the said cheque was paid by the appellants to the respondents the value of which the latter had failed to credit the former with. This allegation was denied by the respondents in paragraph 13(b) (iii) of the Further Amended Statement of Defence to the effect that “they deny receiving same and shall at the hearing require the strict proof thereof.” In an attempt to prove the claim, the appellants adduced evidence as follows:-

P.W.1

“One of the tellers borne (sic) the value of N44,820.00. This is the teller. Tendered. No objection. Marked as Exhibit ‘E’ and read. This amount was not credited to the plaintiff’s account.”

P.W.2

“The third was Union Bank Gboko drawn in favour of the plaintiffs by another customer of the Union Bank. It is for N44,820.00 this cheque was paid in by the plaintiffs and was not credited to the plaintiffs. I saw the teller.”

In rebuttal of the evidence above, D.W.3 testifying for the respondents said:

“A cheque for N44,820.00 was lodged into plaintiff’s account. The plaintiffs operate account in the name of the E.D. Tsokwa and Sons Co. Ltd. Exhibit ‘E’ shows that lodgment of N44,820.00 was made to E.D. Tsokwa and Sons. The defendants did not accept that lodgment because the stamp on it does not belong to the defendants and we have no account for E.D. Tsokwa and Sons.”

Under cross examination the witness further testified thus:-

‘The sum of N44,820.00 was not credited to the Account of plaintiff on 24th February, 1981. Exhibit ‘E’ shows that E.D. Tsokwa and Sons paid into his Account Cheque of N44,820.00. From the records I inherited the only account we have in Union Bank (Nig.) Ltd. Gboko is for E.D. Tsokwa and Sons Co. Ltd. Although the defendants accepted the lodgment of N44,820.00, I cannot say where that money went to. The stamp-used in receiving the amount is not meant for that purpose it has no date.”

P.W.2 said under cross examination:

“For any document of Account to be acceptable, it must contain the signature and the stamp of the relevant Bank.”

Looking at the excerpts of the evidence above, could it be said the appellants had strictly proved the liquidated amount being claimed I answer the question posed in the negative for the following reasons:-

1. The cheque for N44,820.00 paid in by the appellants was drawn in favour of E.D. Tsokwa and Sons which is not the same person as the appellants.
2. The appellants did not satisfactorily prove lodgment of the said cheque since the respondents denied receiving it by leading evidence to show that the stamp used on the teller Exhibit E was neither signed nor dated, and was not the type being used for such purpose.
3. There was no proof by the appellants that they lost anything by showing that the cheque lodged into the respondents was cleared.
4. Even if to say the cheque was cleared (which is not the case here) the appellants being not the payee are not entitled to be credited with the proceeds. The best the respondents could do is to pay the proceeds into their suspense Accounts pending same being claimed by the payee.

The findings and conclusions by Adio JCA (as he then was) that:

“…..official stamp” on the teller (Exhibit “E”) was not the type of official stamp being used to stamp tellers used for making payments into customers’ accounts and that the stamp did not contain any date. Further, there was no evidence that the mark or initial of the person, who stamped and singed the teller, was that of any official of the appellants’ branch at Gboko. A customer of a bank who fills a bank teller and gives the teller and the money to which it relates to just any of the bank’s employees for payment into his account does so at his own risk. If it turns out that the bank employee in question is not an official duly authorized to accept or receive such payment for and on behalf of the bank, the bank will not be vicariously liable if the employee fraudulently converts the money to his own use. See Salawu v. Union Bank (1986) 4 N.W.L.R. (Pt.38) 701. Failure to prove that the initial on the teller, Exhibit “E”, was that of an employee of the appellants is fatal to the respondents’ case.”

These are on firm grounds and cannot be faulted, I therefore answer Issue II in affirmative.

The main appeal fails in toto.

The Cross Appeal

The respondents after obtaining leave of this court filed their cross- appeal, and along with the Amended Respondents brief of arguments, filed the brief in support of the cross-appeal. Three grounds of appeal were filed by the respondents/cross – appellants from which the following two Issues were formulated in the supporting brief:-

(i) On whom did the onus of proof of the value of the three cheques drawn by the plaintiffs/respondents lie

(ii) Was the Plaintiff obliged to pay the cost of preparing the mortgage deeds

On Issue (i) the Learned Senior Advocate submitted that the Court of Appeal as well as the trial court were wrong in putting the onus of proof as regards the discrepancies relating to the facts pleaded in paragraph 9C of the Amended Statement of Claim on the respondents/Cross-appellants. He said the onus was on the appellants to prove what they had alleged and it was only when they had made out a prima facie case that the respondents/cross-appellants would be required to produce rebutting evidence. He contended that the appellants/respondents had to initially prove:-

(i) That it had drawn the particular cheques for the specific amount pleaded;

(ii) That Mobil (Nigeria) Ltd. had only received those specific amounts;

(iii) That the defendants had nonetheless debited the plaintiff’s account with a large amount than that for which the cheque had been drawn and which had been paid to Mobil (Nigeria) Ltd.

Learned Senior Advocate referred to and analysed the evidence adduced by the appellants/respondents, particularly that of P.W.1 and P.W.2 and submitted that the fact that the respondents/cross-appellants pleaded in paragraph 13(c) of the further Amended Statement of Defence that “the defendants hereby gave notice that at the hearing of this suit they will rely on all the wasted cheques referred to in the paragraph” (to wit paragraph 9 C of the Amended Statement of Claim) would not change the position to shift the onus of proof on the respondents/cross-appellants. He further submitted that S.148(d) of the Evidence Act was wrongly

applied by the lower court and the court below.

On Issue (ii) in the cross-appeal, Learned Senior Advocate submitted that both the trial court and the Court of Appeal erred in making a different case for the appellants/respondents from that which they had pleaded. He referred to the portion of the trial court’s judgment where the learned trial judge after reviewing the evidence concluded as follows:-

“The Mortgagor was Emmanuel Danjuma Tsokwa & Sons. The Mortgagee was the defendants and the plaintiffs were the customer. The plaintiffs never signed the Exhibit ‘N’. According to the defendants, the party to pay the legal fee of N20,701.09 was the mortgagor. The Mortgagor in Exhibit “N” was Emmanuel Danjuma Tsokwa &Sons and not the plaintiffs who were named as customer. It was wrong therefore for the defendants to debit the accounts of the plaintiffs;”

and that of the Court of Appeal where he said it went off to raise a completely different Issue for the appellants/respondents as follows:-

“Even if loans were granted by the appellants to the respondents, it is not every time that a bank grants a loan to a customer that the customer is required to execute a deed of mortgage, prepared at the customer’s expense, on his property in favour of the bank as security for the loan. Therefore, in order to recover from a customer or to make him liable for the fees charged by a Solicitor for the preparation of a mortgage deed, a bank has to lead credible and satisfactory evidence to show that it granted a loan to the customer and that one of the conditions, subject to which the loan was granted and to which customer agreed, was that the customer would execute a deed of mortgage, prepared at the customer’s expenses, on his property as security for the loan. In the absence of such an agreement, there will be no legal basis for making the customer liable for the solicitor’s fees charged for the preparation of a mortgage deed. In the present case, there was no evidence before the learned trial judge that the respondents ever agreed to bear the expenses of preparing the deeds of mortgage.”

He contended that the questions raised in the pleadings and for which the Court of Appeal was required to provide solutions were:-

“(i) Whether the learned trial judge was justified in rejecting one of the mortgage Deeds in evidence; and

(ii) Whether the plaintiff was bound to pay for the work which evidently had been done”.

and then submitted that had the Court of Appeal dealt with the Issues raised before it first, it would not have concluded in the way and manner it did in the excerpts of its judgment quoted (supra). He therefore urged the court to allow the cross-appeal for the reasons which he finally summarised and produced as follows:-

“(iv) Because the plaintiff is not entitled to sue for the value of a cheque paid to the defendant as Banker for collection and payment to a third party who has no account with the Bank.

(v) Because the learned trial judge and the Court of Appeal wrongly relied on the cheque counterfoils to show the amount for which the corresponding cheques had been drawn when the plaintiff’s own witnesses had said that the counterfoils did not tally with the cheque leaves;

(vi) Because the Defendant was not obliged to answer a case which had been abandoned, or not made out.

(vii) Because the plaintiff failed to lead any evidence to show the amount for which it wrote the three cheques in respect of which its account was debited.

(viii) Because the plaintiff failed to show that the drawee of the cheques, Mobil (Nigeria) Limited, had not received the amount for which the plaintiff’s account had been debited.

(ix) Because it was never the plaintiff’s case that it had not agreed to pay for the preparation of mortgage deeds, but that it had never applied for any Mortgage at all.

(x) Because the mortgage deeds produced by the defendant showed that the plaintiff had in fact applied for Mortgage;

(xi) Because the Court of Appeal failed to consider the Defendant’s complaint about the wrongful rejection of the mortgage deed and instead made out for the plaintiff a case which it had not made out for itself.

(xii) Because the requirement that the cost of preparing the security documents is borne by the borrower is a matter of which the court ought to have taken judicial notice.”

The appellants/respondents Counsel did not file respondent’s brief to the cross-appeal, nor did he ask for the leave of this court to make oral submissions, in answer to the cross-appeal’s brief and oral submissions made in elaboration thereof.

In paragraph 9 C of the Amended Statement of Claim the appellants averred thus:

“C. Discrepancies in bank statement over cheques issued by the company:

Date Cheque No Value Amount Debited Discrepancy

30/4/79 362037/000102 364.20 N38,107.32 N36,743.12

26/9/79 126 15,418.70 27,413.56 11,994.86

5/1/81 444 137.71 13.753.71 13,616.00

N63,353.98

The plaintiff shall at the hearing rely on the above mentioned cheques and the corresponding stamps and the defendant is hereby given notice to produce the originals of same.

During trial the plaintiff will urge the Honourable Court to strike out all items of Discrepancies in bank statement over cheques issued by the company totalling N63,353.96 which forms part of the said total debit balance of N736,812.29 in the plaintiff’s account with the defendant. The plaintiff further states that the said cheques and sums hereto referred to in this paragraph were payment made to Mobil (Nigeria) Limited Bukuru, Jos, and the plaintiff shall at the hearing found and rely on relevant records of the transaction kept by Mobil (Nigeria) Limited Bukuru in their normal course of duty.”

In answer to paragraph 9(c) of the Amended Statement of claim (supra) the respondents in paragraph 13(c) of the Further Amended Statement of Defence pleaded as follows:-

“(c) In answer to the discrepancies alleged in paragraph 9 C of the statement of claim, the defendants aver as follows:-

(i) The plaintiffs’ cheque Number 000102 of 30/4/79 was drawn for the sum of N38,107.32 and not for N364.20 only.

(ii) Their cheque No. 000126 of 26/9/79 was drawn for N27,413.56 and not for N15,418.70.

(iii) Their cheque No. 000444 debit against the plaintiffs was drawn for N13,753.71 on 9/1/81 and not for N137.71.

The defendants hereby give notice that at the hearing of this suit, they will rely on all the wasted cheques referred to in this paragraph.”

As urged by the Learned Senior Advocate the onus is on him who asserts. See Okubule v. Oyagbola (1990) 4 NWLR (Pt.147) 723 and Ike v. Ugboaja (1993) 6 NWLR (Pt.301) 539. It is only when a claimant has produced credible evidence that prima facie established his claim, the onus would then shift on the person asserting the opposite to adduce evidence in rebuttal. See Nigerian Maritime Services Ltd. v. Afolabi (1978) 2 SC.79 and Adegoke v. Adibi (1992) 5 NWLR (Pt.242) 410.

The claim by the appellants/respondents was in respect of cheques Nos.362037/000102 of 30/4/79 for N364.20. 000126 of 26/9/71 for N15,418.70 and 000444 of 5/1/81 for N137.71 in favour of Mobil (Nigeria) Ltd. Bukuru, Jos by the appellants/respondents and which they alleged were inflated by N37, 743,12, N11,944.86 and N13,616.00 respectively, by the respondents and wrongly debiting their account with total excess of N63,353,98 instead of N15,920.61.

The evidence called by the appellants/respondents in proof of this averment was given by P.W.1 who said that there were discrepancies between cheque stubs and cheque leaflets. He did not indicate from the cheque stubs the counter-foils of the cheques and the amount in each and the corresponding discrepancies. All he did was to tender the two cheque stubs which were admitted as Exhibits F1 and F2. P.W.3 the Managing Director of the appellants and the only signatory of their cheques, said nothing on Exhibits F1 and F2 containing the counter-foils of the alleged inflated cheques.

There was no attempt by the appellants to call any body from Mobil (Nigeria) Ltd, Bukuru, Jos, the payee of the cheques to put in evidence the relevant records of transaction kept by Mobil (Nigeria) Ltd., Bukuru, Jos as pleaded in paragraph 9(c) of the Amended Statement of Claim. In civil cases, the onus of proving particular facts as averred in the pleading is on the person that pleads them, and in the case in hand, the appellants/respondents. It is only after this burden had been discharged that the respondents/appellants would be required to call evidence in rebuttal. See Ike v. Ugboaja (supra).

The complaint by the respondents/cross-appellants is well founded that both the trial court and the Court of Appeal were wrong in shifting the initial burden of proof on them rather than on the appellants/respondents. See Egbunike v. A.C.B. Ltd. (1995) 2 NWLR (Pt.375) 34 at P.53.

On Issue (II) which is related to N21,000.00 with which the appellants/respondents accounts was debited as fees for the two legal mortgages executed, the appellants/respondents averred as follows in paragraph 15 of the Amended Statement of Claim:-

“Furthermore, the plaintiff states that the said debit balance of N736,812.29 also includes a debit of the sum of N20,701.09 being payment made in favour of Izundu & Co. (Solicitors) for perfecting a legal Mortgage of Certificate of Occupancy No. 95/344 for facilities in the tune of N90,000.00 and N650,000.00 from the defendants. The plaintiff denies ever applying for the said facilities as alleged by the defendants in the said debit notes dated 27/7/82.

The plaintiff shall at the hearing found on the defendants debit notes dated 27/7/82 and Zanda Izundu & Co’s bills dated 14/6/81 and 14/6/82. The plaintiff shall further at the hearing urge the court to expunge the said sum of N20, 701.09 from its accounts as debt owed to the defendants.”

In answer to paragraph 15 of the Amended Statement of Claim (supra) the respondents/cross-appellants pleaded thus in paragraph 15 of the Further Amended Statement of Defence:-

“15. In answer to paragraph 15 of the statement of claim, the defendants aver that the sum of N20,701.90 paid to Messrs Zanda Izundu and Co. as fees for perfecting two legal mortgages were fees for perfecting two legal mortgages were fees due and payable by the mortgagor under the Legal Practitioners Remuneration for Professional Services and the plaintiffs are therefore estopped from denying liability for the charges.”

It was the appellants/respondents case that they never applied for credit facilities from the respondents/cross-appellant in the sums of N90,000 and N650,000 respectively and therefore the Legal Mortgagees prepared by Zanda Izundu and Co. were done without their authority. They denied being parties to their execution.”

In the present situation it was the respondents/cross appellants who were asserting that the facts as pleaded by them exist and so the onus of proving the same fell on them and not on the appellants/respondent. What was the evidence presented by the respondents/cross appellants on this issue It was given by D.W.3 the Manager of the respondents/cross-appellants and all he said was that the appellants/respondents have securities for loans in their company by way of two legal mortgages on Certificates of Occupancy deposited with the respondents/cross-appellants. There was no evidence proving the grant of credit facilities, nor was there any evidence that the appellants/respondents authorised the execution of the two legal Mortgages to wit, Exhibit 1 and Exhibit 2 tendered and rejected Even if Exhibit 2 tendered and rejected were to be admitted, [which is not conceded] it would not have made the respondents/cross-appellants’ case any better as no evidence of probative value was adduced. I therefore endorse the conclusion of the Court of Appeal on the issue that:-

“Even if loans were granted by the appellants to the respondents, it is not every time that a bank grants a loan to a customer that the customer is required to execute a deed of mortgage, prepared at the customer’s expense, on his property in favour of the bank as security for the loan. Therefore, in order to recover from a customer or to make him liable for the fees charged by a Solicitor for the preparation of a mortgage deed, a bank has to lead credible and satisfactory evidence to show that it granted a loan to the customer and that one of the conditions, subject to which the loan was granted and to which the customer agreed, was that the customer would execute a deed of mortgage, prepared at the customer’s expense, on his property as security for the loan. In the absence of such an agreement, there will be no legal basis for making the customer liable for the Solicitor’s fees charged for the preparation of a mortgage deed. In the present case, there was no evidence before the learned trial Judge that the respondents ever agreed to bear the expenses of preparing the deeds of mortgage.”

The question of taking judicial notice that a mortgagor is debited with the fees for the preparation and execution of a deed of legal mortgage to secure loan facilities by the respondent/cross-appellants does not arise since the facts as alleged by the respondents/cross-appellants were not proved.

Issue II is answered in the negative.

In the final result the main appeal fails and it is dismissed while the cross-appeal succeeds in part and it is allowed to that extent. The final order shall now read as follows:-

1. The appellants/respondents are granted a declaration that they are not indebited to respondents/cross-appellants in the sum of N736,812.29 but in the sum of N520,070.98k.
2. The appellants/respondents are granted declaration that the respondents/cross-appellants are entitled to calculate interest on the sum of N520,070.98k only.

The respondents/appellants are granted N1,000.00 for the main appeal and the cross-appeal against the appellants/respondents.

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SC.60/1989