|
In The Supreme Court of On Friday, the 2nd day of April 1976
Before Their Lordships
S.C. 42/1975
Between
And
Judgement of the Court
Delivered by
Atanda
Fatayi Williams J.S.C
The plaintiffs, now
respondents, are commercial bankers.
In proceedings commenced by them in the High
Court at Benin City, they claim from the defendant, now appellant) the sum
of £376,320.10.10d being debt due from and payable by the defendant to the
plaintiffs plus interest at the rate of 9% per annum from the date of the
issue of the writ of summons until judgment or payment.
The said amount is shown in the defendant's
account with the plaintiffs as debit balance.
The plaintiffs also sought an order of the court to
foreclose for the purpose of sale, either by public auction or by private
treaty, the two properties at Ward C,
In a reserved judgment delivered after hearing evidence from both parties,
the learned trial judge, rightly in our view,
summarised
the issues raised both by the pleadings and by the evidence given in support
as follows:-
(i)
Whether a case for foreclosure has been made in
respect of the two properties
referred to above;
(ii)
whether the defendant operated
Account No
2285 in the Ring Road Branch, Benin City, of the Plaintiffs' Bank, and if
so, whether the account is overdrawn or in debit as claimed by the
plaintiffs; and
(iii)
if the account is overdrawn, the amount for
which the defendant is liable.
He, however, struck out the claim for an order to
foreclose on the two properties on the ground that
the proper procedure had not been followed.
On
the other matters in issue, the learned trial judge made certain crucial
observations with respect to the testimony of Edward Oritseje, the only
witness who testified for the plaintiffs and who produced the defendant's
statement of account (Ex. B) showing the account number given to the
defendant as 2285.
These observations are, no doubt, based on part
of the evidence given by Edward Oritseje in answer to questions put to him
first in the examination-in-chief and later under cross-examination.
The relevant portion of his evidence-in-chief
reads -
"We
prepared the statement of account sent to the defendant from the Ledger Card
in which the account is kept by the Bank for the defendant.
Before the statements are sent out I see them.
The
statements are prepared by the Machinist from the Ledger Card.
I now say that the statement are prepared by the
Machinist from the vouchers day by day. As
the vouchers are typed to the statement by the Machinist, they are also
typed in the Ledger Card. At the end of the month the statements with the
Ledger Card are sent to the Supervisor who checks them. They are later again
sent to the Accountant of the Bank who examines both the posting and the
checking.
They are then sent
to me as
the Manager to vet to ensure that all the
officers have done their duty before the statement leaves the Bank.
After checking by me they are sent to the
customer.
This procedure I have described was adopted in every
case before defendant's statements of account were dispatched to him. We do
not send statements along with ledger cards to customers.
We send only the statements ……….
I see the document shown to me. It is a true copy of the combined statement
of account which we have been sending to the defendant."
(The underlining is ours).
After some arguments, the statement of account showing the amount claimed as
the outstanding balance was admitted as Ex. "B".
In his judgment, the learned
trial judge observed that Edward Oritseje (1st
P1/W) admitted that the debit
slip (Ex. T) is a duplication of another debit slip (Ex. Tl) and was
repeated in the statement of account (Ex. B) and that he (the 1st
Pl/W) explained that the error was clerical.
He also pointed out that the
(a)
that he did not scrutinise statement of account
(Ex. B) before it went out although he saw it;
(b)
that up till 16th
August, 1972 when he was still testifying in court he had still not had the
opportunity of scrutinising the said statement of account; and
(c)
that the commercial
transactions of the defendant were in United States Dollars and that the
conversion of the dollars to sterling (Nigerian pounds) which,
incidentally, resulted in a short-fall for the defendant, was carried out at
the head office of the plaintiffs’
Bank in
Eventually, the learned trial judge gave judgement for
the amount claimed as shown on the statement of account (Ex. B) less the sum
of £10,123.19.3d after finding the following facts proved -
(a)
that the defendant was at all
material times a customer of the plaintiffs' Bank and
maintained at their
(b)
that the defendant applied for and obtained
overdraft facilities in the Bank and made use of the liberal overdraft
facilities granted to him and that he obtained heavy overdraft from the
Bank which he has been unable to repay; and
(c)
that Ex. B the certified copy of the statement
of account is a true copy of the statement of account kept by the plaintiffs
for the defendant.
Thereafter, the learned trial judge observed as follows:-
“Three points of substance were
made by learned counsel for the defence against the statement of account.
These are the debit of £l0.5.0d interest on 29th
November, 1966, double debit of £ 10,099.4.3d made on 4th
March, 1971 which was admitted by plaintiffs’ witness, and the debit of £10,099.3d
for loss re-devaluation of sterling debited to the defendant on 14th
August, 1969.
There is no counter-claim before me in respect of Overseas Bills for
collection deposited with the plaintiffs and not collected.
The evidence shows that the
defendant was not credited with the value of these Bills and as the claim
before me is based on the account of monies received and credited to the
defendant's account and monies paid out to him or at his order to others,
the Bills not realised cannot be considered and cannot affect this claim.”
The defendant has now appealed against the
judgment. Although,
with the leave of this court, four grounds of appeal were filed in
substitution for the original grounds of appeal, the only ground argued by
learned counsel for the defendant, appellant reads -
"The learned trial judge erred in
law
in admitting
Ex. B (the alleged copy of entries in
the
statement of the
defendant's Bank
Account) in
evidence
without
any proof
that -
(a)
there
was in
existence a
banker's book from which the entries about the said Account, were made;
(b)
the book was, at
the
time of
making the entries, one of the ordinary books of the bank;
(c)
the entries
were made in
the usual and ordinary course of
business;
(d)
the book is in the custody and control of the
bank; and
(e)
the
copy of the
entries sought
to
be tendered has been examined with the original entries and found correct."
In
the course of his argument in support of the appeal, learned counsel
referred us to part of the testimony of the first and only witness called by
the plaintiffs to which we have referred earlier.
He also referred us to the answer given by the
witness when he was asked whether he had prepared a certified true copy of
the statement of account of the defendant for the purposes of the case in
hand which reads -
"I
see the document shown to me.
It is a true copy of the combined statement of
account which we have been sending to the defendant."
He then pointed out that the statement was admitted
in evidence as Exhibit "B" notwithstanding the strong objection of learned
counsel for the defendant/appellant on the ground that the plaintiffs/
respondents had not complied with the procedure laid down in
section 96 of
the Evidence Act Cap. 62 (hereinafter
referred to as the Act). Learned counsel then referred to the provisions of
sections 96(1)(h) and 96(2)(e) of the Act which deal with the admissibility
of a document which contains an entry in a "banker's book" and submitted as
follows.
The provisions of section 96 would not be of any
avail to the plaintiffs/respondents because there was no question of any
"banker's book" in the case in hand.
To
make a Ledger Card admissible, section 96(2) (e) of the Act would need to be
amended, but until it is so amended, Ledger Cards which are not banker's
books as defined in the Act, can only be admitted in evidence if they are
brought to court and tendered in accordance with the provisions of section
90 subsections (1), (4) and (5) of the Evidence Act.
As the statement (Ex.B) is not shown to be an
entry from a banker's book but was compiled from a Ledger Card, it was
wrongly admitted.
Learned counsel further
submitted, in the alternative that even if the "Ledger Card" is considered
to be a "banker's book", for the statement compiled from it to be
admissible, the preliminaries prescribed in
section 96(2)
(e) must be complied with.
As there is no evidence that this was done, the
statement was admitted in error.
Moreover, to make
confusion worse confounded, learned counsel also submitted, the 1st
plaintiff witness said that the "statements were prepared by the machinist
from the vouchers".
As the "vouchers" cannot
be regarded as "banker's books", the statements "prepared" from them are
still not admissible under
section 96(2)(e) of the Act.
Finally, learned counsel submitted that, as the plaintiffs/respondents' case
was based on the statement (Ex.B), the wrongful admission of the statement
has knocked the bottom out of the plaintiffs/respondents' claim, and that
the only order which the court could, and should have made in the
circumstances is to dismiss the plaintiffs/respondents’ claim in its
entirety.
In reply, learned counsel for the
plaintiff/respondent submitted that where a document is expressly pleaded in
the circumstances set out in Paragraph 9 of their statement of claim, there
is no necessity to serve notice to produce the original in view of the
provisions of the proviso to
section 97 of the Act.
When it vas pointed out to
learned counsel that
section 97 is
irrelevant, firstly, because it deals only with notice -to produce an
original document where a party wishes to prove a copy of the document by
virtue of the provisions of
section 96(1) (a) of the Act,
and secondly, because the original document (the voucher) in the case in
hand is with the Bank, he did not pursue this argument. Learned counsel,
however, referred us to 'the letter (Ex. B) written by the
defendant/appellant to the plaintiffs/ respondents and submitted that the
defendant/ appellant never denied owing the bank some money. That being the
case, learned counsel observed, it would be in the interest of justice,
assuming there is merit in the submissions of learned counsel for the
defendant/appellant, to allow the appeal and non-suit the
plaintiffs/respondents
In our view, there can be no doubt, both from the pleadings and from the
evidence adduced by both parties, that the plaintiffs/respondents' claim was
baaed on the statement of account (Ex. B). This view is supported by the
averments in paragraphs 10 and 11 of the statement of claim which read -
"10.
At the close of business
on 15th
January, 1972, the defendant's said account according to the books kept by
the plaintiffs showed a total sum of £376,320.l0.l0d debit which sun
includes interests, bank charges, commissions and other charges as
aforesaid.
11.
The plaintiffs will at the hearing of this suit
tender the said statement of account of the defendant numbered as 2285 on
which the suit shall be founded."
The learned trial judge also had the statement of
account (Ex. B) very much in mind when he was delivering his reserved
judgment.
In this connection, we think it is pertinent to refer
to that part of his Judgment which reads -
"Counsel submitted that Ex. B is
admissible, being certified true copy of entries in the books of the
plaintiffs’
Bank.
I hold it is admissible ……
I find as a fact that Ex. B the certified copy of statement of account is a
true copy of the statement of account kept by the plaintiff s for the
defendant."
The next question is, was the statement of account properly admitted in
evidence and if it was hot, to what extent would it affect the
plaintiffs/respondents’ claim?
It must be recalled that the claim is for
£376,320.10.104, the sane amount referred to in paragraph 10 of the
statement of claim as the debit balance of the defendant's "account
according to the books kept by the plaintiff".
Since the evidence adduced
by the plaintiffs' first and only witness showed that the statement of
account (Ex. B) was prepared or compiled from a "voucher", can it be
regarded as "an entry in a banker's book" thereby making its contents
admissible in evidence by virtue of the provisions of
section
96(2)(e) of the Evidence Act? We think not
for the following reasons.
Although section 96(l)(h) of the
Act provides that secondary evidence may be given of the existence,
condition or contents of a document where the document is an entry in a
banker's book, a "banker's book" is defined in.
section 2
of the
Act
as including "ledgers, days books, cash
books, account books and all other books used in
the ordinary business of a bank".
Admittedly, this definition is not restrictive
and could there- fore be extended to mean something else which it does not
ordinarily mean.
Therefore, while the phrase may include "a
ledger card", although even this is far from clear, we do not think it could
;be extended to mean a "voucher" from which, according to the evidence, the
entries in the statement of account (Ex. B) were obtained.
That
being the case, the statement
could not be admitted as secondary evidence of the entries in banker's book
by virtue of the provisions of
section
96(l)(h) of the Act and the learned trial
judge was in error in admitting it as such.
Even if the statement of account (Ex. B) could have
been admitted as secondary evidence under
section
96(l)(h) of the Act, it could have been so
admitted only in accordance with the procedure laid down in
section
96(2)(e) thereof which reads :-
"96
(2)
The secondary evidence admissible in respect of
the original documents referred to in the several
paragraphs of
subsection (l) is as follows:-
(e)
In paragraph (h) the copies cannot be received
as evidence unless it be first proved that the book in which the entries
copied were made was at the time of making one of the ordinary books of the
bank, and that the entry was made in the usual and ordinary course of
business,
and that the book is in the custody and control of the
bank, which proof may be given orally or by affidavit by a partner or
officer of the bank, and that the copy has been examined with the original
entry and is correct, which proof must be given by some person who has
examined the copy with the original entry and may be given orally or by
affidavit."
We
have considered the scope of this section in
The State v Olomo (unreported but see SC.1/1970
delivered on 29th
October, 1970).
We observed in our decision in that case as
follows:-
"It is not the length of evidence given in tendering a
bank statement of account that matters but the substance of the evidence
given; nor is it compulsory that the precise words set out in
section
96(2)(e) should be used by the witness or
the judge taking down his evidence.
It is enough that substantially the requirements
of the section are observed: 'e.g.
(i)
where it is not possible to produce the book of
the bank, a certified copy of the account is enough to satisfy the court
that there is a book in existence from where copies were made,
(ii)
if certified by an official of the bank giving
evidence, this presupposes that he has compared the copy with the original
before he certified it, and
(iii)
if the books of the bank were produced by the
manager
or the accountant, this, must have been in the custody and control of the
bank.”
It is sufficient to point out
that, in the case in hand, none of the requirements of
section 96(2)
(e) as explained in
The State v
Olomo (supra) was complied with by the
plaintiffs.
All that the 1st
Pl/W did with the statement of
account
was "to vet to ensure that all the officers
have done their duty before the statement leaves
the Bank". He did not say that he examined it with the original entries and
found it correct or that the "voucher" was one of the books kept by the
Bank. On the contrary, the witness testified under cross-examination as
follows:-
“I
did not scrutinise Ex. B and Ex. Bl before they went out although I saw
them.
Up till this morning I have never had the opportunity
of scrutinising Ex. B."
For all these reasons, we think that the statement of account should not
have been admitted in evidence under that section and the learned trial
judge was again in error in admitting it as he did.
There is one other point.
Could the statement of account have been
admitted under section 37 of the Act?
The section reads -
"37.
Entries in books of account, regularly kept in
the course of
business, are relevant whenever they refer to a matter into which the court
has to inquire, but such statements shall not alone be sufficient evidence
to charge any person with liability."
The section was considered by
this court in
Esso
West Africa Inc. v. T. Oyegbola (1969) 1 N.M.L.R.
where we observed at page 198 as follows:-
"Besides,
section 37 of
the Evidence Act does not require the
production of ‘books’ of account but makes entries in such books relevant
for purposes of admissibility.
The evidence describes the cards sought to be
tendered as ledger cards, meaning that they are cards from a ledger or
constitute a ledger. The law cannot be and is not ignorant of modern
business methods and must not shut its eyes to the mysteries of
the computer.
In modern times, "reproduction or
inscriptions on ledgers or
other documents by mechanical process are common place and
section 37
cannot therefore only apply to ‘books of account ' ..... so bound
and the pages
..... not easily replaced."
Again the entries in the statement of account (Ex. B)
cannot be regarded as entries in “books of account” for the purpose of this
section because there is positive evidence that they are "prepared by the
machinist from the voucher”. Moreover, the record of proceedings shows that
the statement was not tendered under
section 37
but under
section 96(l) (h) of the Evidence Act.
For these reasons, we do
not think that the statement of account (Ex. B) could have been admitted
under
section 37 of the Act.
Finally, while we agree that, for the purpose of
sections
96(l) (h) and 37 of the Act, "banker's
books" and "books of account" could include "ledger cards", it would have
been much better, particularly with respect to a statement of account
contained in a document produced by a computer, if the position is clarified
beyond doubt by legislation as had been done in England
in the
Civil Evidence Act 1968.
Section 5
subsections (1) and. (2)
of that
Act provide that in any civil proceedings a
statement contained in a document produced by a computer would, subject to
rules of court, be admissible as evidence of any fact stated therein of
which direct oral evidence would be admissible, if it is shown that certain
conditions are satisfied in relation to the statement and computer in
question.
These conditions are -
(a)
that the document containing the statement was
produced by the computer during a period over which the computer was used
regularly to store or process information for the purposes of any
activities regularly carried on over that period, whether for profit or
not, by any body, whether corporate or not, or by any individual;
(b)
that over that period there was regularly
supplied to the computer in the ordinary course of those activities
information of the kind contained in the statement or of the kind from
which the information so contained is derived;
(c)
that throughout the material part of that
period, the computer was operating properly or, if not, that any respect in
which it was not operating properly or was out of operation during that part
of
that period was not such as to affect the production of
the documents or the accuracy of its contents; and
(d)
that the information contained in the statement
reproduces or is derived from information supplied to the computer in the
ordinary course of those activities.
Be
that as it may, it is manifest that, in the case in hand, the document
(Ex.B)
on which the plaintiffs/respondents' claim is predicated was admitted in
error.
The next question is this. Should the
plaintiffs/respondents’ claim, for this reason only, be dismissed in toto?
In considering what order to make, we cannot
ignore the contents of the letter (Ex. 0) written by the defendant/
appellant in reply to the plaintiffs/respondents' letter (Ex. N).
The letter (Ex. N) dated 8th
July, 1971, reads –
"F. S. Yesufu, Esq.,
P.O.
Box 151,
Benin
City.
Dear
Sir,
Your
outstanding debt of £274, 790.l8.6d
We
writes you as solicitors of the African Continental Bank Limited and have
instructions to demand your immediate payment to the Bank of the sum of
£274, 790.l8.6d (Two hundred and seventy four thousand, seven hundred and
ninety pounds
eighteen shillings six pence) being the balance of your debt at Ring Road,
Benin City Branch of the Bank originating from transactions between you and
the said Bank in May, 1967.
It is our instruction that several demand notices have been sent to you by
the said bank to settle this debt but you have proved adamant. We are
instructed therefore to demand your immediate settlement of this
outstanding debt to the bank within 14 (fourteen) days from the date of
this letter failing which we shall have to carry out our further instruction
of taking you to court for the recovery of the said debt with costs thereto.
We shall do this without further notice to you.
Yours faithfully,
(Sgd.)
C, I. Okoye
Solicitor."
The reply (Ex. 0) dated 21st
July, 1971, reads:- "The Senior Solicitor, African Continental Bank Ltd. Head Office. P.M.B.
2466, Lagos. Dear Sir,
Re: My overall indebtedness
I
intend to liquidate my total indebtedness with the Bank on or before the end
of
September
1971, or substantially reduce the amount. The two
months
should be regarded as months of grace to enable me double my efforts towards
the clearance of this adverse balance.
Considering my past relationship with the bank, I hope you will use your
good offices to make this consideration; I will also like the senior
solicitor to give me some time to reconcile some of the outstandings which
are expected to be credited to my account to reduce my indebtedness and
have not been done.
Litigation as you know is protracted and might not be in the interest of
the cordial relationship that has always existed between the bank and
myself.
Kindly give this my unflinching proposal your consideration. If I fail you
can go on with your
court auction for recovery.
I give my honour on this transaction and
I won't
fail.
I have
outstanding bills and as soon as they mature or the proceeds are received, I
will pay same to reduce the balance and I am also
expecting some money from Finance Houses for the expansion of my business.
Be
rest assured that I will not fail.
Yours faithfully, for:
Sarah & Yesufu Trading Company. (Sgd.)
F. S. Yesufu, Managing
Director."
(The
underlining is ours).
In view of the admission made in Ex. O, we do not
think that it will be fair or just to dismiss the plaintiffs/respondents'
claim in its entirety. We must, nevertheless, allow this appeal for the
reasons we have stated earlier. The appeal is allowed and the judgment of
the learned trial judge in Suit No.
B/10/72, delivered in the High Court sitting in Benin City on 16th
August, 1974, including the order made by him as to costs, is set aside.
Instead we nonsuit the plaintiffs/respondents and this shall be the
judgment of the court. Costs in favour of the defendant/appellant are
assessed in the court below at
Counsel
|