Oguma Associated Companies (Nigeria) Ltd V. International Bank For West Africa Ltd. (1988)

LawGlobal-Hub Lead Judgment Report

G. O. AGBAJE, J.S.C. 

The Plaintiff Bank, International Bank for West Africa Ltd. sued the Defendant Company Opuna Associated Company (Nig.) Ltd. in a Warri High Court in Bendel State. By its original writ of summons filed in May, 1978, the Plaintiff Bank claimed against the Defendant Company the sum of N1,155 695.46 (One Million, One Hundred and Fifty Five Thousand Six Hundred and Ninety Five Naira, Forty-Six Kobo) being balance of money had and received by the Defendants for their use at their own request, by way of loan, over draft accommodating and/or facilities from the Plaintiffs who are Bankers.

Pursuant to an order of court made by the learned trial Judge Agege J. the Plaintiff Bank was allowed to amend the claim against the Defendant Company to read the sum N1,542,294,32 and the sum of money was said to be due from the Defendant Company to the Plaintiff Bank as at 28th January, 1981 on the loan transactions between the Plaintiff and the Defendant and which gave rise to the action which the former instituted against the latter in 1978. The order to amend was made inspite of the opposition of Counsel for the Defendant Company to the application to amend.

Pleadings were ordered, filed and delivered. There were amendments to the pleadings originally filed. Since once pleadings are amended, what stood before amendment is no longer material before the court and no longer defines the issues to be tried (See Warner v. Sampson (1959) 1 K.B. at 321) this case now before us on appeal can be said to have proceeded to trial on the amended Statement of Claim filed in May, 1981 and the amended Statement of Defence filed in February, 1981.

At the trial the Plaintiff Bank called four witnesses to testify in its behalf. The defendant Company offered no evidence at all. In the course of his evidence P.W.1 one Chamberlain Obibi, an Account – Assistant Manager of the Plaintiff Bank at Warri testified as follows:-

“I know the plaintiff. I know the defendant company. I resumed duty in Warri in March, 1979. In the course of my duty I find that defendant account was highly overdrawn. It is our practice to send out statements of Account to customers. We sent Statements of Account to the defendants. They have four accounts. They are all still in operation. They are now only two in operation.

I sent the statements of account to No. 151 Warri/Sapele Road. I can see these documents. I have the certified true copies of the statements I sent to that address. No objection – admitted and marked as Exhibit G (4 bank of Statement of Account 1976 – 1981). We did not receive any protest from Defendants as to whether they were correct or wrong. xx by Kehinde:- I joined the Bank in 1979. 1did not myself send any of the statements now tendered,”

So it is clear that Exh. G the four statements of account about which P.W.1 spoke were admitted in evidence without any objection to their admissibility.

The learned trial Judge in his judgment given in the case on 19th October, 1981 held as follows:-

“As I see it the claim before the Court is severable; a part relates to the loan of N600,000 secured by mortgages and a contract of guarantee and another part relates to some other advances and/or overdrafts, bank charges and interests. As regards the claim relating to the loan of N600,000, I will act under Order 28, R.3 of the High Court (Civil Procedure) Rules, 1976 of the Bendel State, and enter a non-suit in respect thereof; I dismiss the claim in respect of all other advances and/or overdrafts, bank charges and interests.”

In the course of his judgment the learned trial Judge expunged from the proceedings in this case Exh. G which, as I have just said, had been earlier on in the case admitted in evidence. He did this because, according to him, Exh. G could only have been properly admitted in evidence under the provisions of Section 96(2) (e) of the Evidence Act. In order to appreciate what the provisions of Section 96(2) (e) of the Evidence Act are about it will be necessary to read them along with the provisions of Section 96(1) (h) of the same Act. The two provisions are as follows:-

“96(1) Secondary evidence may be given of the existence, condition or contents of a document in the following cases-

(h) when the document is an entry in a banker’s book;

96(2) The secondary evidence admissible in respect of the original documents referred to in the several paragraphs of subsection (1) is as follows-