Mr. Fasisi Bello-osagie & Ors. V. First Bank Of Nigeria Plc (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment)

The Appellants who were the Plaintiffs in the court below instituted the action which led to this appeal against the Respondent who was the Defendant in the High Court of Edo State.

In their further amended Statement of Claim, the Appellants claimed the following reliefs against the Respondent Bank:

“(a) A declaration that all monies removed from the account of the Estate of Late Chief Bello-Osagie via cheques signed by a non-executor were illegally removed.

(b) An order that the said monies thus illegally removed be refunded and paid over to the account of the estate forthwith.

(c) One Million Naira General Damages for negligence. ”

Pleadings were filed and exchanged by the parties. The case presented at the trial briefly put, was that the four Original Executors of the Will of Late Chief Bello-Osagie, namely Ben Edo-Osagie, Alhaji Sule Oyiboke, Mr. E.O. Igunbor and late Bishop John Edokpolor, opened an Estate Account in respect of the Will of Late Chief Bello-Osagie in 1969 at the King’s Square, Benin City Branch of the Respondent Bank. The Original Executors later appointed one of them, Ben Edo-Osagie and Pastor Nafiu Bello-Osagie, a non-executor and a beneficiary of the estate as co-signatory to the Estate Account by the Executors of the Will.

The Respondent Bank honoured cheques signed jointly by Ben Bello-Osagie and Pastor Nafiu Bello-Osagie in accordance with the said original Executors’ Written Instruction, tendered as Exhibit D.

The Original Executors were later substituted by the Appellants in a Judgment tendered as Exhibit H. The Respondent Bank’s defence was that it had no reason or justification not to comply with the Mandate of the Original Executors appointing Ben Edo-Osagie and Nafiu Bello-Osagie as co-signatories, when they were infact the holders of the Estate Account having opened the said account with the Respondent Bank.

The case proceeded to trial on the basis of a Further Amended Statement of Claim filed by the Appellants on the 21/9/98 and a second Further Amended Statement of Defence filed by the Respondent on the 29/3/2001.

At the conclusion of trial, the learned trial Judge Edokpayi, J, (as he then was) dismissed the claims of the Appellants holding as he did at page 82 lines 6 – 20 of the Record of Appeal as follows:

“No commission of any crime by the Defendant Bank has been established against the Defendant Bank which acted in good faith in honouring the cheques co-signed by Nafiu Bello-Osagie in compliance with Exhibit D. Negligence on which the Plaintiffs are. claiming in Paragraphs 12(c) of their Further Amended Statement of Claim has not been established. The Plaintiffs have not sued the Executors who by Exhibit D instructed the Defendant Bank to honour cheques signed by Nafiu Bello-Osagie.

On the whole, I prefer the case of the Defence to that of the Plaintiffs who have failed to establish their case and claims on the preponderance of evidence. The case and claims of the Plaintiffs which have not been proved are herein dismissed. ”

Aggrieved by the Judgment of the trial court, the Appellants have appealed to this court on a total of four grounds (one original and three additional grounds) which without their particulars are herein set out.