CORAM

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RAPHAEL CHIKWE AGBO, JUSTICE, COURT OF APPEAL

MUHAMMED L. SHUAIBU, JUSTICE, COURT OF APPEAL

BALKISU B. ALIYU, JUSTICE, COURT OF APPEAL

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PARTIES

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DEKAN NIGERIA LIMITED

APPELLANTS 

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ZENITH BANK PLC

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, COMPANY LAW, COURT, LAW OF BANKING, LAW OF CONTRACT, LAW OF EVIDENCE, LAW OF TORT, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Plaintiff, a private limited liability Company operates current account number 1014198008 with the Defendant, a commercial bank.  The Plaintiff issued a cheque of N15, 000.00 drawn on its said account to one Utitofon Patrick Akpan.  At the time the cheque was issued, the Plaintiff had a credit balance of N537, 001.60 (Five Hundred and Thirty-Seven Thousand, Hundred Naira, Sixty Kobo) in the account which was in excess of the value of the cheque issued to Utitofon Patrick Akpan.  Upon presentation, the Defendant refused to pay the value of the cheque which action the Plaintiff alleged was a breach of contract and a negligent conduct.

The Defendant on its part stated that the refusal to honour the Plaintiff‘s cheque was in obedience of an earlier letter of 23/4/2018 notifying it of the appointment of a receiver/manager to oversee the Plaintiff’s assets and thereby suspending the signatures of the said account.

The Plaintiff commenced an action before the High Court of Akwa Ibom State, sitting in Uyo wherein it claimed declaratory and injunctive reliefs. The Defendant denied the claim and on exchange of pleadings, the matter went into trial at the end of which, the trial court dismissed the claim and awarded a cost of N50, 000.00 (Fifty Thousand Naira) in favour of the Defendant.

Dissatisfied, the Appellant filed this appeal through a notice of appeal.

 

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HELD

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Appeal Dismissed

 

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ISSUES

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Whether or not the appellant has led sufficient evidence in proof of its claim for wrongful dishonoured cheque?

 

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RATIONES DECIDENDI

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BANKER/CUSTOMER RELATIONSHIP – NATURE OF A BANKER/CUSTOMER RELATIONSHIP

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“Generally speaking, the relationship between a bank and its customer is contractual.  It thus consists of general and special contracts arising from the particular requirements of banking business.  The relationship varies and can be said to be that of debtor and creditor where there is sufficient credit balance in the client’s account.  In essence, each banker/customer relationship must be considered on its merit.  See Haston (Nig) Ltd –V- A.C.B. Plc. (2002)7 SC (prt.11) 54 at 70-71,  G.T.B. –V- Ogboji (2019)13 NWLR (prt.1688) 67 and Purification Tech (Nig) Ltd –V- A.G., Lagos State (2004) 9 NWLR (prt. 879) 665”. PER M.L. SHUAIBU, J.C.A

 

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ONUS OF PROOF – NATURE OF THE ONUS OF PROOF IN CIVIL CASES

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“The position is trite law under the Evidence Act as in civil cases that the burden of proving a particular fact is upon the party who asserts it and who will fail if no evidence is called upon the issue, regard being had to any presumption which may arise from the pleadings of the parties.  Thus, onus of proof is, however, not static.  It continually shifts from side to side in respect of a fact in issue until it finally rests on a party against whom judgment will be given if no further evidence is proffered before the court.  See Igwe –V- African Continental Bank Plc. (1990) 6 NWLR (prt. 605)1 and Fadlaallah –V- Arewa Textile Ltd (1997) 8 NWLR (prt. 518)546”. PER M.L. SHUAIBU, J.C.A

 

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BURDEN OF PROOF OF NEGLIGENCE – ON WHOM LIES THE BURDEN OF PROVING NEGLIGENCE

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“Furthermore, the burden of proof of negligence falls on the appellant who alleges negligence.  This is because negligence is a question of fact, and it is the duty of the party who asserts it to prove it.  Thus, the failure to prove particulars of negligence pleaded is fatal to the case of the appellant”. PER M.L. SHUAIBU, J.C.A

 

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APPOINTMENT OF A RECEIVER/MANAGER- LEGAL CONSEQUENCES OF APPOINTING A RECEIVER/MANAGER

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“The legal consequences of appointing a receiver/manager is that the assets which hitherto were available to the company become seised of the control of the receiver/manager and the company can only deal with assets of the company with the receiver’s consent.  Consequently, the receiver/manager is regarded as the agent of the company for the purpose of dealing with assets in receivership.  See K.P.M.G. Marwick Ani Ogunde & Anor –V- Vidana Nigeria Ltd & Ors (2021) LPELR – 54935 (CA).  And also the provisions of Section 393 (4) of the Companies and Allied Matters Act 2020 explicitly provides that as from the date of appointment of a receiver or manager, the powers of the Director or Liquidators in a members voluntary winding up to deal with the property or undertaking over which he is appointed shall cease unless and until the receiver or manager is discharged. PER M.L. SHUAIBU, J.C.A

 

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EVALUATION OF EVIDENCE – CIRCUMSTANCES WHEN AN APPELLATE COURT WILL EMBARK ON A RE-EVALUATION OF EVIDENCE

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“In the case of Lafia Local Government –V- Executive Governor Nasarawa State & Ors (2012) LPELR – 2060, OLABODE RHODES VIVOUR, JSC at page 23 paras, E-F said:

“Evaluation of evidence entails the trial judge examining all evidence before him before making his findings.  This is done by putting all the evidence on an imaginary scale to see which side appears outweighs the other.”

In the instant case, the learned trial examined the respective evidence of the parties, weighed them together and arrived at the conclusion that the respondent acted in good faith and in obedience to the law that regulates the legal personality and working of the appellant.  Suffice to say that an appellate court will not embark on a re-evaluation of the evidence led by the parties in the trial simply because a party made an allegation of improper evaluation of evidence and formulated an issue for determination from the complaint.  An appellate court will only do so where a party visibly demonstrates the perversity of the findings made by the trial court by showing that the trial court:

made improper use of the opportunity it had of seeing and hearing the witnesses, or did not appraise the evidence and ascribe probative value to it, or drawn wrong conclusions from proved or accepted facts leading to a miscarriage of justice. PER M.L. SHUAIBU, J.C.A

 

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CASES CITED

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NONE

 

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STATUTES REFERRED TO

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Companies and Allied Matters Act 2020

Evidence Act

 

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