Ferdinand George Vs The United Bank For Africa Ltd (1972)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C. 

In Suit No. K/64/1967, the plaintiffs in the Kano High Court claimed in their writ as follows:-

“The plaintiffs claim against the defendant is:-

1. for the sum of 21,178.9.11d (pounds) being money payable by the defendant to the plaintiffs for money lent by the plaintiffs to the defendant and for money paid by the plaintiffs for the defendant as bankers and agents for the defendant at his request and for interest upon money due from the defendant to the plaintiffs and foreborne at interest by the plaintiffs to the defendant at his request and for bank charges, full particulars of all of which are contained in the affidavit in support hereof; and
2. for compound interest on the said sum of 21,178.9.11d (pounds) at the rate of eleven per centum per annum with monthly rates from the 29th June, 1967 until repayment or judgment.”

Pleadings were ordered and were duly filed and delivered.

The plaintiffs statement of claim reads:-

“1. The plaintiffs are a banking company carrying on business in Kano and elsewhere in Nigeria.

2. The plaintiffs are the successors to British and French Bank Limited who also carried on business in Kano and elsewhere in Nigeria.
3. The defendant is believed to be a merchant in Kano and resides at 24E Ado Bayero Road, Kano.
4. The defendant has a current banking account with the plaintiffs. The plaintiffs and their predecessors paid money to the defendant as bankers for the defendant at his request together with interest upon the money due from the defendant to the plaintiffs and foreborne at interest by the plaintiffs to the defendant at his request and by reason thereof the said account has been overdrawn in the sum of 21,178.99711 as at 29th June, 1967 which said sum is due and owing by the defendant to the plaintiffs.
5. Compound interest with monthly rates is presently accruing on the said sum of 21,178.9.11d (pounds) at the rate of eleven per centum per annum.
6. The defendant by letter dated 16th February, 1963, addressed to the plaintiffs admitted and acknowledged therein that he was at that date indebted under his said current banking account in the sum of 17,794(pounds).
7. Whereof the plaintiffs claim as per writ of summons.”

Paragraphs 1-3 of the amended statement of defence read:-

“1. Save as is hereinafter expressly admitted each and every allegation of fact set out in the statement of claim is denied in (sic) seriatim, as if each was denied separately.

2. The defendant admits the allegations contained in paragraphs 1 and 3 of the statement of claim.
3. With regard to the facts alleged in paragraph 4 of the statement of claim the defendant says that his banking account was not operated by him since October 1959.”

The defendant averred further in the statement of defence that he was authorised by the British and French Bank Ltd., Kano, to overdraw his current account there to a limit of 8,000(pounds) and he received advances from the said Bank but could not say precisely the amount which he drew before October 1959. He did not know whether or not he was charged any interest thereon and, if he was, how much interest he was charged. He then stated that the British and French Bank Ltd. or the plaintiffs hold a legal mortgage upon his property and that the value of the mortgaged property far exceeded any sum in which he might be indebted to the British and French Bank Ltd. or to the plaintiff.

He further stated that his legal rights and liabilities in respect of any sum which he might owe the plaintiffs or the British and French Bank Ltd. were governed by the terms of the said mortgage which constituted a bar to the action. After pleading the Statutes of Limitation as another bar to the action, he stated finally that as regards the payments alleged to have been made by the British and French Bank Ltd. or the plaintiffs after 16th October, 1967, the consideration given, if any, was past consideration.

In support of the plaintiffs’ claim, one Alastair Glynne Foulkes (plaintiffs’ 3rd witness), the Assistant Manager of the plaintiffs, testified as follows:-

“I have been with plaintiff bank for about 8 years. I came in January 1961, to join British and French Bank. In October 1961, that Bank’s assets and liabilities in Nigeria were taken over by a consortium of foreign banks, including the British and French Bank which still retained a majority share holding. A new company was formed called the United Bank for Africa Limited. The business of British and French Bank was taken over by the U.B.A. We issued what we called ‘Bridge Forms’ to all customers. I know defendant. He is a customer owing us money. He was a customer of British and French Bank since 1956. He did not sign a ‘Bridge Form’. I do not think he was sent one to sign. I see exhibit 1. It is a copy of defendant’s account with British and French Bank and with plaintiffs. When plaintiffs took over in October 1961, this account was taken into their Book.”

When cross-examined further about the take-over of the British and French Bank by the plaintiffs, the witness replied:-

“I do not agree we are acting as agents for British and French Bank. We claim this money is due to us. We are legally entitled to this money. We bought the assets and took over the liabilities.