First Bank Of Nigeria Plc V. May Medical Clinics & Diagnostic Centre Limited & Anor (2001)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, J.S.C.

This is an appeal against the judgment of Court of Appeal in an interlocutory matter, in the suit originating at High Court of Kaduna State presided over by Donli, J. The plaintiffs, May Medical Clinics and Diagnostic Centre Ltd. and its Managing Director, Kevin Chukwudi Nwachukwu, sued the defendant. First Bank of Nigeria Plc for dishonouring two cheques issued by 2nd plaintiff (now 2nd respondent) for the sums of N1000.00 and N1,200.00 respectively. He was claiming against the appellant “the sum of five hundred thousand Naira and interest at the rate of 25% per annum for the dishonouring of the cheques”. The particulars of the claim were set out by the plaintiffs as

“1. Amount wrongfully withdrawn by the defendant account; N3,780.80

2. The amount surcharged the plaintiff by the defendant for the dishonoured cheque – N1,000.00
3. Amount spent by the Plaintiffs in their defence at the prosecution of the second plaintiff by the landlord at Tudun Wada Area Court 1 at Kaduna for the recovery of the N1,000.00 contained in the dishonoured cheque = N500.00
4. The sum of N1,000.00 wrongfully debited the plaintiffs on the 30th January, 1985 while the cheque for that amount was negligently dishonoured = N1, 000.00

Total N5,28 1.00.”

The balance of N494,720.00 was claimed as general damages. Judgment was given by learned trial Judge after hearing the parties on 23rd November 1992. The judgment was in favour of the plaintiffs but a dispute arose as to the exact terms of the judgment. This has led to heated disagreement between the Counsel to the plaintiffs and the previous Counsel for appellant, one Dr Festus Oguntoye who seems to have totally disappeared from the suit but who has been directly accused of dishonesty and misconduct which he denied. Similarly, learned trial Judge was accused of keeping away not only the original handwritten scripts of the judgment she delivered in open court but also the entire file containing the proceedings in the suit. This appeal, as I said earlier is interlocutory because the real issue is not the merit or demerit of the trial judge’ judgment but that the judgment being attempted to be executed was different from the one delivered in open court. Further, the file containing the original handwritten proceedings, including the judgment, was taken away by learned trial Judge to her house, ostensibly “to be put into computer,” but for several months all attempts to get it back to Kaduna High Court Registry were futile. But an appeal had been promptly lodged at the Court of Appeal. The trial Judge, despite the appeal lodged, had immediately issued a writ for execution of the judgment. The appellant’s original Counsel, Dr. Oguntoye, lodged the appeal and filed a brief and prepared a record of appeal. But the trial Judge, it was alleged never returned the file and finally it was alleged missing. The dispute was whether the file was returned by trial Judge and whether Dr. Oguntoye had access to it to prepare the record of appeal. Curiously enough, in a motion to amend grounds of appeal and the brief of argument, with affidavits and counter affidavits by parties, neither trial Judge nor Dr. Oguntoye was invited to react to the allegations as none of them filed any affidavit. The appellant had at the stage before motion in Court of Appeal to amend the notice of appeal and brief of argument, dispensed with services of Dr. Oguntoye and briefed another Counsel. Thus, what was before the Court of Appeal as interlocutory matter to the appeal was that the record of appeal, especially the judgment, was not the correct one as at court of trial.

To illustrate the issues, it is expedient the affidavits and the ruling of Court of Appeal be set out. The appellant’s new Counsel, before 28th September, when the matter was to come up, filed a motion praying for the following orders:

“i. Leave to amend the appellant’s notice of appeal by substituting same with the ‘annexed Exhibit “C” and deeming the said Exhibit “C” as being duly and ‘properly filed and served.

ii. Leave to amend the appellant’s brief of argument by substituting same with the amended brief of argument marked herein as Exhibit “D” and deeming the said Exhibit “D” as being duly and properly filed and served.

iii. An order of this Honourable Court vacating its order directing all the parties to this appeal to return to the Registrar of High court No. 4 for the purpose of settlement of the record of proceedings on the ground that based on the existing facts, it is impossible to comply with such an order.

iv. Abridging the time within which the respondents may file a reply to the appellant’s brief.

v. Accelerated hearing of the appeal.”

The supporting affidavit, inter alia, asserts as follows:

(a) That both parties had challenged the existing printed records but the principal complaint came in the form of an affidavit filed by respondent’s Counsel challenging its correctness.

(b) That only the handwritten original of the judgment of Hon. Donli J. would have put to rest the doubts and allegations brought about by the Certified True Copy which is said to be at variance with the said manuscript.