New Improved Manibannc Ventures Ltd. V. First Bank of Nigeria Plc. (2009)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A.

On 14/3/05 the plaintiff/appellant commenced Suit No. HC/114/05 by writ of summons against the defendant/respondent in the High Court of Cross River State sitting in Calabar. By a statement of claim filed on 14/3/05 and attached to the writ of summons, the appellant claimed as follows:

“For Negligence and Conversion

1. PARTICULARS OF SPECIAL DAMAGES

(a) The sum of one thousand, one hundred and eighteen U. S. Dollars (1118) being the value of the cheque/draft lodged with the defendant Calabar Main Branch.

(b) Thirty per cent (30%) interest rate per month of the value of the cheque/draft from the month of March, 2004, till judgment is delivered on compound interest.

(c) Thirty per cent (30%) per month on the judgment sum till the entire sum is liquidated.

(d) N40,000 as the cost of litigation as was the agreement between the plaintiff and Dr. Mogu.

2. General damages of Two Million Naira (N2,000,000.00)only.”

The appellant, a customer to the respondent, on 4th November, 2003 lodged a foreign cheque/draft into its account at the Calabar Main Branch of the respondent. The cheque/draft which was issued by the First National Bank of Swaziland Ltd. was thereafter processed and sent on clearing to the issuing bank to enable the respondent to receive proceeds/value for the credit of the plaintiff’s account.

While the proceeds of the cheque/draft was being awaited in the course of clearing, the appellant through its Managing Director (PW1 in the trial court) variously visited and enquired from the Branch Manager of the respondent at Calabar Main Branch for the proceeds of the draft. At each of such visits, the said Manager explained to the appellant that it had not yet received the value of the cheque/draft from the issuing bank in Swaziland as a result of which the plaintiff’s account could not be credited.

When it however appeared that the cheque/draft was taking a long time to be cleared, the respondent wrote to the appellant on 13/8/04 and requested the appellant to obtain a replacement cheque/draft to enable the respondent to secure value/proceeds for the appellant’s credit since the initial draft was then presumed lost. The request which was in consonance with recognized diligent banking practice was however turned down by the appellant. Appellant thereby commenced this suit against the respondent as per the aforestated claims. The respondent filed its statement of defence on 5th August, 2005 and denied liability.

At the trial, both parties called one witness each, tendered exhibits in proof of their respective case and finally filed written addresses. The appellant abandoned its claim on conversion of the value of the draft on the part of the respondent as no evidence was led in proof of same. In his judgment delivered on 16th of April, 2007 the learned trial Judge dismissed the appellant’s claims on the basis that the appellant had woefully failed to prove conversion of the proceeds of the draft as well as negligence on the part of the respondent.

Aggrieved by the judgment of the trial court, the appellant appealed to this court on two grounds on the 9/5/07. Subsequently, the appellant, by a motion on notice dated and filed on 13/11/08 applied for leave to amend his notice of appeal which was granted. The two grounds in the amended notice of appeal are as follows:

“Grounds of Appeal

Ground 1: The learned trial Judge erred in law when he dismissed the suit despite the admission of the defendant/respondent of receiving the draft the subject matter of the suit. Ground 2: The judgment of the learned trial Judge is against the weight of evidence.”