SHUAIBU ISA V KANO STATE
April 30, 2025ALHAJI MUSA SANI V. THE STATE
April 30, 2025Legalpedia Citation: (2015) Legalpedia (CA) 13181
In the Court of Appeal
Mon Jun 29, 2015
Suit Number: CA/L/338/2012
CORAM
CHINWE EUGENIA IYIZOBA -JUSTICE COURT OF APPEAL
YARGATA BYENCHIT NIMPAR -JUSTICE COURT OF APPEAL
PARTIES
CHIEF S. N. MUOMAH (Trading under the name and style of Metro – Harman Enterprise) APPELLANTS
ENTERPRISE BANK LTD RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Claimant/Appellant had purchased a bankers cheque in the sum of N1, 625, 000.00 (One Million, Six Hundred and Twenty Five Thousand Naira) from the former African Continental Bank on the 20th day of June, 1994 which got lost and was reported to the Defendant/Respondents Festac Town Branch. He was asked to wait for a mandatory period of six months after which his account would be credited with the value of the cheque, and it was during his period of waiting that the bank closed down only to be re-opened 2002. After demands had been made for his account to be re credited all to no avail, the Claimant/Appellant instituted an action before the Lagos State High Court claiming the sum value of the cheque, the credit balance in his account, and the interest of the said sum at the rate of 25% per annum from the 20th day of June, 1994. At the end of the trial, the claims of the Claimant/Appellant were dismissed and this being displeasing to him, he lodge an appeal before the Court of Appeal, Lagos Judicial Division.
HELD
Appeal allowed.
ISSUES
Whether the learned trial Judge was right in dismissing the second claim of the claimant which is the N30, 527.65(Thirty Thousand, Five Hundred and Twenty Seven Naira, Sixty Five Kobo) being the credit balance in his account with the respondent bank which was admitted by the Respondent in paragraphs 15 of the Amended Statement of defence.Whether the oral report made by the claimant and the 2nd claimant witness of the loss of the cheque to the Respondent is a valid report for the Respondent to re credit the account of the claimant with the value of the missing cheque.
RATIONES DECIDENDI
ADMISSION OF FACTS – WHEN A FACT HAS BEEN ADMITTED, THE CLAIMANT IS RELIEVED OF THE BURDEN OF PROVING SAME.
“There is a difference between outright admission that can found a judgment and what default of pleadings can enure to the other side. The case of LEWIS & PEAT (NRI) LTD V AKHIMIEN (1976) 1 ALL NLR (Pt 1) 460 is in the same light as the case of CHIEF RASAKI KOLAWOLE SHODIPO V AYINKA SHADIKO OGIDAN (SUPRA), but there the Supreme Court said when a fact is admitted the claimant has no burden to proceed to prove same.” PER Y. B. NIMPAR, J.C.A.
PLEADINGS – PLEADINGS NOT TRAVERSED ARE DEEMED ADMITTED
“The pleadings of the appellant were not traversed therefore, the legal effect is that the burden of proof on the claimant is lightened because of the general rule that pleadings not traversed are deemed admitted…”See Chief Rasaki Kolawole Sodipo & Ors V Mr. Ayinke Shadiko Ogidan & Ors (2007) LPELR – 3962 (CA) which in following the case of Omosho V Dada (1984) 7 SC 149 held thus:
“A plaintiff need not proceed to prove an admitted fact. And a fact is deemed to be admitted if it is neither specifically denied nor denied by implication, having regard to other facts averred in the pleadings. A plaintiffs’ averments of facts must be met by the defendant frontally and categorically. The rule of pleadings do not allow a defendant to be hedgy or evasive in his answers to the facts averred by the plaintiff. Once he refuses to meet the facts directly – either by admitting or denying them, except, of course, where he is not in a position to admit or deny by reason of the matter, for example, being peculiarity within the knowledge of the plaintiff – he is taken to have admitted them. Deducing from the foregoing authority, it is expected of the appellants to have properly traversed the averments on the respondent’s claim by a denial or non admission either expressly or by necessary implication. Refusal to admit a particular allegation in a statement of claim must be stated specifically, the absence which amounted to an admission.” PER Y. B. NIMPAR, J.C.A.
STAUTE OF LIMITATION- THE BILL OF EXCHANGE ACT HAS NO LIMITATION PERIOD
“The cause of action can only fail where limitation period has caught up with it. The Bill of Exchange Act has no limitation period.” PER Y. B. NIMPAR, J.C.A.
RIGHT OF A CUSTOMER- RIGHT AVAILABLE TO A BANK CUSTOMER WHERE BANK DEFAULTS IN PAYMENT
“When a customer whose account has money makes a demand on the bank, it must comply because it is a debtor and if the bank fails to pay the creditor is entitled to sue for recovery of the amount, which can be said to have arisen from the date of failure to effect payment, see YUSUF V COOPERATIVE BANK LTD (1994) 7 NWLR (Pt 359) 676.” PER Y. B. NIMPAR, J.C.A.
RELATIONSHIP BETWEEN BANKER AND CUSTOMER- THE RELATIONSHIP IN LAW BETWEEN A BANKER AND HIS CUSTOMER HAS BEEN THAT OF DEBTOR AND CREDITOR
“The relationship between a banker and its customer was held to be as follows:
“For the proper appreciation of the evidence, I consider it necessary to state elementary principles of banking law and practice. Since the celebrated case of FOLEY V HILL (1848) 2 H.L. CAS. 28 the relationship in law between a banker and his customer has been that of debtor and creditor.” PER Y. B. NIMPAR, J.C.A.
MEANING OF LACK OF EVIDENCE IN SUPPORT OF PLEADINGS – WHAT LACK OF EVIDENCE IN SUPPORT OF PLEADINGS MEAN IS THAT THE PLEADINGS OF THE RESPONDENT STAND ABANDONED
“What lack of evidence in support of pleadings mean is that the pleadings of the Respondent stand abandoned, see the case of U.B.N PLC V AYODARE & SONS (NIG) LTD (2007) 13 NWLR (Pt 1052) 567 where the apex court held thus: “It is settled law that where a party to an action fails to testify in support of facts in his pleadings, those facts are deemed abandoned.” See also Yusuf V Oyetunde (1998) 9 – 10 SC 123; OMOBORIOWO V AJASIN (1984) 1 SCNLR 108 and Fayemi V Oni (2009) 7 NWLR (Pt 1140) 223 at 255.” PER Y. B. NIMPAR, J.C.A.
UNCONTROVERTED EVIDENCE – LEGAL POSITION OF UNCONTROVERTED EVIDENCE.
“The legal position of uncontroverted evidence is settled, see Ogunyade V Oshunkeye (2007) 15 NWLR (Pt 1057) 218 where the Supreme Court held thus:
“The law in my view is settled that where evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the proceedings to act on the unchallenged evidence before it. Odulaja V Haddad (1973) 11 SC 357; Nigerian Maritime Services Ltd V Alhaji Bello Afolabi (1978) 2 SC 79. Unchallenged and uncontradicted evidence ought to be accepted by the court as establishing the facts therein contained.” See also Nzeribe V Dane Eng. Co. Ltd (1994) 8 NWLR 124; Ebeinwe V The State (2011) 7 NWLR 402 and Okike V L.P.D.C. (2005) 15 NWLR (Pt 949) 471.” PER Y. B. NIMPAR, J.C.A.
ADDRESS OF COUNSEL – IT CAN NEVER TAKE THE PLACE OF EVIDENCE.
“Address of counsel cannot take the place of evidence no matter how brilliant and alluring it may be, see Aliucha & Anor V Elechi (2012) LPELR – 7823 (SC) and Ishola V Ajoboye (1998) 1 NWLR (Pt 532) 74.” PER Y. B. NIMPAR, J.C.A.
MINIMAL PROOF – WHAT WILL CONSTITUTE DISCHARGE OF ONUS ON MINIMAL PROOF
“On minimal proof, this court in the case of SKYPOWER EXPRESS AIRWAYS LTD V AJUMA OLIMA & ANOR (2005) LPELR – 7548 (CA) said as follows:
“In particular, and this is well settled, where a defendant offers no evidence whatsoever in defence the evidence before the trial court obviously goes one way, with no other set of facts or evidence on the opposite side weighing against it. There is nothing to put on the other side of the “imaginary scale” of justice or balance and, in that case, the onus of proof is naturally discharged on minimal proof.”
See also NWABUOKU V OTTIH (1961) 1 ALL NWLR 487 at 490; OGUMA ASSOCIATED CO (NIG) V I.B.W.A (1988) 1 NWLR (Pt 73) 658 at 682 and BALOGUN V U.S.A LTD (1992) 6 NWLR (Pt 247) 336 at 354.” PER Y. B. NIMPAR, J.C.A.
CASES CITED
STATUTES REFERRED TO
Bills of Exchange Act Cap 35 Laws of the Federation of Nigeria
Evidence Act, 2011
