Festus Sunmoila Yesufu V. African Continental Bank Ltd (1976)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C. 

The plaintiffs, now respondents, are commercial bankers. In proceedings commenced by them in the High Court at Benin City, they claim from the defendant, now appellant, the sum of 376,320,10.10d(pounds) being debt due from and payable by the defendant to the plaintiffs plus interest at the rate of 9% per annum from the date of the issue of the writ of summons until judgment or payment. The said amount is shown in the defendant’s account with the plaintiffs as debit balance.

The plaintiffs also sought an order of the court to foreclose for the purpose of sale, either by public auction or by private treaty, the two properties at Ward C Lawani Street, Benin City, mortgaged by the defendant to the plaintiffs by way of deposit of title deeds. One deed was registered as No.41 at page 41 in Volume 48 of the Lands Registry at Benin City and the other as No.22 at page 22 in Volume 40 of the Lands Registry in the same office at Benin City.

In a reserved judgment delivered after hearing evidence from both parties, the learned trial judge, rightly in our view, summarised the issues raised both by the pleadings and by the evidence given in support as follows:

Cases referred to.

(i) Whether a case for foreclosure has been made out in respect of the two properties referred to above;

(ii) whether the defendant operated Account No.2285 in the Ring Road Branch, Benin City, of the Plaintiffs’ bank, and if so, whether the account is overdrawn or in debit as claimed by the plaintiffs; and

(iii) if the account is overdrawn, the amount for which the defendant is liable.

He, however, struck out the claim for an order to foreclose on the two properties on the ground that the proper procedure had not been followed.

On the other matters in issue, the learned trial judge made certain crucial observations with respect to the testimony of Edward Oritseje, the only witness who testified for the plaintiffs and who produced the defendant’s statement of account (Ex. B) showing the account number given to the defendant as 2285. These observations are, no doubt, based on part of the evidence given by Edward Oritseje in answer to questions put to him first in the examination-in-chief and later under cross-examination. The relevant portion of his evidence-in-chief reads:

“We prepared the statement of account sent to the defendant from the Ledger Card in which the account is kept by the Bank for the defendant. Before the statements are sent out I see them.

The statements are prepared by the Machinist from the Ledger Card. I now say that the statements are prepared by the Machinist from the vouchers day by day. As the vouchers are typed to the statement by the Machinist, they are also typed in the Ledger Card. At the end of the month the statements with the Ledger Card are sent to the Supervisor who checks them. They are later again sent to the Accountant of the Bank who examines both the posting and the checking. They are then sent to me as the Manager to vet to ensure that all the Officers have done their duty before the statement leaves the Bank. After checking by me they are sent to the customer.

This procedure I have described was adopted in every case before defendant’s statements of account were despatched to him. We do not send statements along with ledger cards to customers. We send only the statements.

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