Mainstreet Bank PLC V. Dizengoff (West Africa) Nigeria Limited (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment)

This Appeal is predicated on the Judgment of the Adamawa State High Court of Justice delivered on 26th September, 2012 in Suit No ADSY/44/2007. The Respondent, (as Plaintiff), filed a Writ of Summons on 4th September, 2003, wherein it claimed from the Appellant Bank, (as Defendant), the sum of N39, 508,156.00 plus interest thereon as damages for negligence by the Defendant Bank in the operations of the Plaintiff’s two (2) accounts at the Defendant Bank’s Yola branch.

Briefly put, the facts of the case are that the Plaintiff, a business establishment, was, for over 10 years prior to the institution of the suit, a customer of the Defendant Bank at its Lagos, Ibadan and Yola branches. It opened a Remittance Account at the Appellant Bank’s Yola Branch for the purpose of its business in Adamawa State and its environs.

By a letter dated 22-05-91 written from the Plaintiff’s Head office in Lagos and sent to the Appellant Bank’s Branch at No. 78/84 Kofo Abayomi Avenue, Apapa-Lagos, the Plaintiff requested the Defendant Bank to instruct its Jimeta-Yola Branch to open a Remittance Account in the name of the Plaintiff.

Among other instructions, the Plaintiff informed the Defendant Bank’s Branch at Kofo Abayomi Avenue to supply its Jimeta-Yola Branch with the Plaintiff’s signatories for the operational purposes of the said account, and the Defendant Bank complied. The signatories on the mandate were two of the Plaintiff’s senior officers who operate the Plaintiff’s accounts with the Defendant Bank in all their branches.

The Plaintiff wrote another letter dated 15-10-93 to the Defendant Bank at its Yola Branch instructing that an Imprest Account be opened and operated solely by one Musa Ahmed Abdulkadir, for the smooth administration of the Plaintiff’s Yola Branch office. The Defendant again complied. Here again, the mandate was signed by two senior officers of the Plaintiff who operate all the accounts of the Plaintiff with the Defendant Bank.

The Remittance Account, from the letter instructing the Defendant Bank to open the account, was intended to be used only to receive deposits on behalf of the Plaintiff from its customers, and to transfer any balance therein on the Wednesday of every week to the credit of the Plaintiff’s Account at the Defendant Bank’s Branch at Kofo Abayomi Avenue, Apapa, Lagos. The Imprest Account, on the other hand, was to be operated based on the conditions stated in paragraph 2 of the Plaintiff’s letter instructing the opening of the said account, i.e. to pay into the said account any cheques issued by the Plaintiff’s Head office. Then the signatory of the Plaintiff at the Yola office would withdraw funds from this Imprest Account for the running of the Plaintiff’s Yola office. However, the Plaintiff alleged that, contrary to the above conditions, it subsequently discovered that cheques and cash, (being payment for goods bought from the Plaintiff by various persons and corporate bodies issued in the name of the Plaintiff and meant to be paid into the Remittance Account), were lodged into the said Imprest Account and withdrawn by an unauthorised person, in breach of the mandate from the Respondent, thus causing it losses totalling N39, 508,156.00.

The Plaintiff, in an attempt to prove its case, called one sole witness and tendered four (4) exhibits, while the Defendant Bank also called one lone witness and tendered six (6) exhibits. Thereafter, the learned trial Judge, in his Judgment, found in favour of the Plaintiff. It held, inter alia, that the Defendant Bank was negligent in the operation of the Plaintiff’s accounts by merging the two accounts and allowing a person who was not mandated by the joint signatories of the Plaintiff, to operate the accounts. Judgment was thus entered for the Plaintiff in the sum of N39, 508,156.00 (Thirty Nine Million, Five Hundred & Eight Thousand, One Hundred & Fifty Six Naira) only plus 5% interest thereon, pre and post Judgment. The Defendant Bank, being aggrieved by this decision, appealed to this Court on five (5) Grounds. Subsequently, it sought and was granted leave on 20-11-13 to amend its Notice of Appeal, wherein it introduced a 6th Ground of Appeal.

On 24th March, 2014, when the Appeal was called up for hearing, Mr. G.C. Adikwu, learned Counsel for the Appellant, relied on the Amended Notice of Appeal filed on 15-11-13, but deemed properly filed and served on 20-11-13 by an order of this Court. He adopted both the Appellant’s Brief of argument and the Appellant’s Reply Brief of argument, (the latter of which responded to the preliminary objection raised and argued in the Respondent’s Brief of argument), and relied on the arguments contained therein as the Appellant’s arguments in this Appeal. He urged the Court to allow the Appeal and set aside the decision of the lower Court.

In like vein, Mr. Hassan G. Maidawa, learned Counsel for the Respondent, appearing with Miss J.A. Bwangali and Miss H.A. Ngbale, adopted the Respondent’s Brief of argument filed on 20-12-13, wherein he had also raised and argued a preliminary objection to the competence of Ground six (6) in the Amended Notice of Appeal. He relied on the arguments contained in the Brief, in respect of both the preliminary objection and the main Appeal, as the Respondent’s arguments in this Appeal. He urged the Court to dismiss the Appeal as lacking in merit.

In the Notice of preliminary objection contained at pages 3-4 of the Respondent’s Brief of argument, the grounds for the objection were stated as follows:

(i) The Appellant by the said Ground 6 is raising a fresh issue before the Court of Appeal which was not raised before the trial Court;

(ii) The Appellant cannot raise a fresh issue to wit: non-joinder of parties before the Court of Appeal without first obtaining leave of the Court of Appeal to do so.

In arguing the objection, learned Counsel for the Respondent submits that Ground 6 of the Appellant’s Amended Notice of Appeal, which raises the issue of non-joinder of parties, is incompetent, being a fresh issue not raised before the trial Court and in relation to which no leave of the Court of Appeal was sought and obtained. He relies on the case of Adelakun V Oruku (2006) 11 NWLR (Pt. 992) 629 @ 641-642, paras D-F. The Court was thus urged to strike out Ground 6 of the Appellant’s Ground of Appeal.