Universal Trust Bank of Nigeria Limited V. Awanzigana Enterprises Limited (1994)

LawGlobal-Hub Lead Judgment Report

SAMSON ODEMWINGIE UWAIFO, J.C.A.

On 13th March, 1990, at the High Court, Lagos, A. O. Silva, J., gave judgment in a claim based on unauthorised withdrawal of a sum of money from the plaintiff’s account with the defendant. The plaintiff is a company engaged as a general merchant in commodities marketing and transportation. The defendant is a banker.
On 9 July, 1986, the sum of N 100, 000.00 was withdrawn from the plaintiff’s account No. 00197 – 01442 in the defendant’s Apapa Branch, Lagos by means of a counter cheque. The plaintiff says it authorise or made no such withdrawal.The defendant says it was the Managing Director of the plaintiff company, Alhaji Abba Mustafa, who came in person to withdraw the money.
The plaintiff in the amended statement of claim asked for (a) general damages of N250,000.00 “for the negligence of the defendant in the payment” of the said N 100,000.00; and (b) payment of the said sum of N100,000.00 with “interest at 18% or the current rate with effect from 9/7/86 until payment is made.”

A careful study of the oral evidence and the documentary evidence is bound to reveal how intriguing the case is. Any unfortunate gloss over the intricate aspects of the evidence leads inexorably to a miscarriage of justice. This is particularly so when the allegations of negligence and forgery accompanied by fraud, with which I shall deal in some detail later, are a direct indictment of the defendant bank’s officials. There is nothing unusual; I need to say, in making such allegations when appropriate. But in the present case, it is the unsettling implications of those allegations that cannot, from the available evidence and perhaps from the way the proceedings were conducted, escape attention.
The learned trial judge reviewed the evidence adduced before him and held that there was forgery of the counter cheque. In ruling out payment of the money in good faith in view of the reliance placed by the defendant on sections 60 and 90 of the Bills of Exchange Act (Cap. 21) Laws of the Federation, the learned trial judge said: “From the evidence, it is my view that the cheque was dishonestly paid.” He then gave judgment for the plaintiff against the defendant for N 100,000.00 without interest. He added: “I do not think interest should be awarded since this could not have been in the contemplation of the parties at the time of the fraudulent withdrawal of the money from the plaintiff’s account which was a current account.”

The defendant/appellant has in its appeal raised seven issues for determination. They are stated as follows:
“1. Whether or not the rejection of an application to call an expert witness (handwriting analyst) by the Defendant after the plaintiff was granted leave to adduce further evidence by calling an handwriting analyst affected the decision.
2. Whether the failure of a Defendant to refer disputed documents in its possession for handwriting analysis before the trial would preclude a court from granting such Defendant leave to refer such disputed documents to an analyst as aforesaid.
If the answer is negative: whether the failure of the learned trial judge to grant leave to the defence to refer disputed documents for handwriting analysis and call such analyst as witness would have affected the outcome of the trial.
3. Whether the testimony of a handwriting analyst with regard to disputed signatures on a document is sufficient to prove an allegation of fraud beyond reasonable doubt.
4. Whether in the circumstances of this case the applicant was negligent in paying out some money on an allegedly forged cheque.
5. Did the learned trial judge follow the principle laid down in Mogaji v. Odofin (1974) 4 SC 94, while evaluating the evidence before him? OR Did the learned Trial Judge follow the appropriate principle while evaluating the evidence before him?
6. Whether the learned trial judge properly directed himself about the burden of proof and discharge of same, having particular regard to the nature of the issues placed before him, in particular evidence of forgery, fraud and dishonesty especially the import of Section 90 of the Bills of Exchange Act (Cap. 21).
7. Was the judge right in entering judgment for the plaintiff/respondent on the state of the evidence before him?”

The plaintiff/respondent has reduced these to three, namely:
“(a) Whether the respondent company signed and/or authorised the application Ex. 8, for the purchase of Counter-cheque Ex. 9, and whether it authorised the withdrawal of the sum of N 100,000.00 from the plaintiff/respondent account with the appellant on 9th July, 1986.
(b) Whether the appellant was negligent and or dishonest in the circumstances.
(c) Whether the respondent was entitled to judgment.”

I think both parties talk of the same issues to some extent except the issues on the handwriting analysis complained of by the defendant/appellant. In my view these ought to be given a separate and prominent consideration.

It is common ground that the plaintiff company had, at all material times to this action, a current account with the defendant bank at its branch at Apapa Lagos. The Managing Director of the plaintiff company, Alhaji Abba Mustafa, who testified as P.W.1, was the sole signatory. He is not literate, not being able to read or write. But he can write and identify his signature. An amount of N100, 000.00 was on 9 July, 1986 withdrawn from the said account by a counter cheque, Exhibit 9. A counter cheque is a single cheque leaf requisitioned for and given to an owner of an account to enable him to withdraw from his account if he has not, or claims not to have, got his cheque book on him. At various times some members of staff of the defendant bank had assisted Alhaji Mustafa to write out his cheques for him to sign. There was that official cum personal relationship in that regard. A total of thirteen cheques signed by Alhaji Mustafa were admitted: see Exhibits 3, 3A-3J, 4, 4A-4B. Of these, only exhibit 3B was written by the General Manager of the plaintiff company, Alhaji Adamu Abubakar, who testified as P.W. 2.
The counter cheque (exhibit 9) which was used for withdrawing the N100,000.00 was said to have been made available to Alhaji Mustafa through a Requisition Form the day the cheque was used. It was admitted as exhibit 8. Alhaji Mustafa denied neither ever requisitioning for a counter cheque nor signing any such cheque on 9 July, 1986. He however admitted being present at the bank that day on which occasion he paid in a bank draft for N70, 000.00 as per remittance form admitted as exhibit 1. Although there is no evidence as to when and how the bank draft got to Alhaji Mustafa, it is significant to note that it is a Kano draft (as stated in exhibit 1).

The case of the defendant bank, supported by four of its officials, reads in brief: Alhaji Mustafa called on the branch Operations Officer of the Bank. Stephen Ayorinde Odewusi (D.W.1) on 9 July, 1986. He told him he was from the Airport and did not have his company’s cheque book on him. He had an urgent business to transact so he requested for a counter cheque. Mr. Odewusi telephoned Gregory Charity Edema Ogbe, an Assistant Operations Officer (D.W. 2), and informed him of Mustafa’s request. Mr. Ogbe in turn instructed Miss Olusolape Dinakin, a clerk (d.w. 4), to get a cheque requisition slip (or form) for Mustafa. Dinakin brought one to Mustafa where he was sitting in front of Odewusi. At the request of Mustafa, Dinakin helped to fill in the requisition slip in the presence of Odewusi and Mustafa. Then Mustafa signed the slip, front and back: exhibit 8. Dinakin took the signed cheque requisition slip (exhibit 8) to Ogbe (D.W.2) the custodian of all cheques including counter cheques in the branch for approval. Ogbe approved by initialling exhibit 8 and gave the counter cheque book to Dinakin who took it straight to Odewusi.

In the presence of Dinakin, Mustafa instructed Odewusi to write out the cheque. To use Dinakin’s expression as to how Mustafa gave the instruction, he said, “write am”. Odewusi wrote out the cheque in the presence of Dinakin for N100, 000.00. Dinakin took away the cheque book after Odewusi detached the counter cheque. Mustafa signed the counter cheque (exhibit 9), front and back. His company’s stamp was not affixed then because he did not have it on him. But true to his promise to bring the stamp to be affixed on exhibit 9 before the close of business that day, he complied. The stamp was affixed, front and back.

After exhibit 9 had been signed, Odewusi called Raphael Omosuyi, a Supervisor (D.W. 3), and gave him the cheque for N100, 000.00 drawn on the plaintiff company to encash it and give the proceeds to Mustafa, Omosuyi requested Ogbe for the money. Ogbe and Omosuyi brought the money out of the strong room. Omosuyi kept the money in the vault room and asked Mustafa to come in there to collect it. He did so in the presence of Ogbe and one Adebayo, the vault teller. It is the practice that any amount over N30, 000.00 is not paid over the counter. The money was taken away in two Central Bank boxes later returned by Mustafa through his driver.

It was some months later on 24 September, 1986. Mustafa came for reconciliation in view of some money he had paid in on 5 September, 1986 not reflected in his company’s account. The amount was N 138,000.00. The then Internal Control Officer, Johnson Adepoju (d.w. 5) said in connection with that amount:
“I made an enquiry as to why it was not reflected in the plaintiffs account and I found out that the account number on the teller was the number of another customer by the name Alhaji Bako into whose account the sum of N 138,000 was paid. I informed the Manager about the mistake which I discovered. Alhaji Bako was informed and the entry was reversed.”

It was on that occasion too Mustafa raised an issue about the N100,000.00. This was apparently because it was not reflected in any of his company’s cheque stubs. It would not be reflected in any of them if, as was contended, the money was drawn with a counter cheque. In this regard, Adepoju (d.w. 5) said as to what then happened to resolve the matter:
“I quickly requested for his (Mustafa’s) cheque stubs and his tellers in order to reconcile his accounts. After checking through I found that the cheque for N 100,000 was not in his cheque stub. I then went to our archives to check what must have been responsible for the N 100,000 debit. I recovered the cheque for N 100,000 in our archives and I took it to the Manager, Mr. Evbota in company of Alhaji Abba Mustafa. Mr. Evbota said that the cheque was a counter cheque and he showed it to Alhaji Abba Mustafa who said ‘Cikena’.”
Later on 15 January, 1987, Mustafa went back to the bank on the same issue of N 100,000.00. He denied knowledge of the money and refused to listen further.
The plaintiff amended its statement of claim after it closed its case and the defendant had begun leading evidence in its defence although the application to amend was vigorously opposed. At the same time the learned trial Judge gave leave to the plaintiff to call further evidence and to tender expert report i.e., handwriting analyst’s evidence, even without hearing the parties before such leave was given. There is no appeal against that although the defendant complains that it was not allowed to also call expert evidence.
The first point I wish to make at the moment on the amended statement of claim is that it repeated paragraphs 5 and 6 of the original statement of claim even in spite of the evidence already led. Paragraphs 5 and 6 read:
“5. The plaintiff avers that in the course of making any withdrawal(s) the Managing Director, as afore-mentioned, who is illiterate, would either ask the plaintiff’s General Manager, Alhaji Adamu Abubakar or the defendant’s Apapa Branch Manager- (and nobody else) – to help him to write the cheque(s) (only) in his presence and after signing the cheque(s) he would (personally) present the same for payment or for issuance of drafts in favour of the plaintiff’s customers.
6. The plaintiff (shall) vigorously deny at the (trial) that it ever solicited the assistance of any of the defendant’s Officials, servants or agents on 9/7/86 or any other date at its Apapa Branch to write any cheque or a Counter-cheque nor did it withdraw N 100,000.00 on the said date from the said defendant’s Branch.”

It will be observed the emphasis with which the fact of which bank official and no one else wrote out cheques for P.W. 1, was pleaded. The said P.W. 1 in examination-in-chief said:
“Whenever I need to draw money from my bank account, I take my cheque book to the Manager of defendant bank, Apapa branch. I would give my cheque book to the Manager, Mr. Evbota, and I would ask him to write the amount I desire to withdraw on the cheque. After writing the amount, I would then sign my name on the cheque and put my company stamp. The Manager would also sign the cheque and put his stamp on it. I would then take the cheque to the counter for either cash or bank draft. I do not ask anyone else in the bank besides the Manager to assist me in writing my cheque.”
The above-quoted evidence in line with the pleading was given in order, no doubt, to discredit whatever evidence would be available from the defendant that the counter cheque was filed in by a bank official other than the Manager. In my view, it was a deliberate piece of evidence. If such evidence is shown to be untrue, the effect would be substantial on the reliability of Mustafa (P.W.1). In cross-examination P.W.1 was confronted with a number of his cheques, four of which deserve mention. They were all admitted in evidence. Exhibit 3D was issued on 23/6/86 and Exhibit 3E on 30/6/86. Exhibits 3H and 3J were issued on 29/8/86. In other words, two were issued shortly before 9/7/86 (the day the counter cheque was issued) and two were issued shortly after that date. The P.W.1 admitted that Exhibits 3D, 3H and 3J were written out by Ogbe (D.W.2) while exhibit 3E was written out by Odewusi (D.W.1). It would be recalled that it was Odewusi who wrote out the counter cheque.
With this admission in cross-examination, Mustafa (P.W.1) was discredited on an important aspect of the evidence with the clear implication that he wanted to hide the fact that there was nothing unusual for any of the bank officials to assist him in filling his cheque. Of the four cheques, Exhibits 3D, 3E, 3H and 3J, only 3D was for a small amount. Exhibit 3E was for N 123,600.00. 3H was for N223, 500.00 and 3J was for N250, 000.00. In respect of exhibit 3H, p.w.1 was asked in cross-examination if he knew one Saibu Bako, and the following was recorded:
“I do not know Saibu Bako. I have seen Exhibit 3H, it was signed by me. It is true that I issued the cheque Exhibit 3H to Saibu Bako. I remember buying sugar from him, and I paid him with Exhibit 3H. Saibu Bako is not my business partner. I now say I know Saibu Bako.”

The learned trial judge’s attention was drawn to these inconsistencies by P.W.1 by counsel for the defendant. I do not think it is difficult to reach a conclusion that P.W.1 is a dubious person – unrealiable – when the true import of what he tried to deny is understood as I have tried to show. But the learned trial judge merely observed: “These are to my mind untruths told by p.w.1 but I do not see it as any serious damage to his evidence as a whole.”‘ In my view, the learned trial judge glossed over an extremely relevant matter. The strength of p.w.1’s evidence as a whole depends largely on how reliable, how truthful he is. If he is adjudged an unreliable person as he ought to have been, there will be no difficulty in disposing of the other aspects of the evidence adduced by him.