In The Supreme Court of Nigeria
On Friday , 25th day of January 1980
SC 48/1979
Between
Chief Festus Sunmola Yesufu ....... Appellant
And
African Continental Bank Ltd ....... Respondent
Judgement of the Court
Delivered by
Kayode Eso
We dismissed this appeal on 26th November, 1979 and reserved our reasons. My Lords, I now give my reasons for agreeing that the appeal be dismissed.
In the Court of trial. the plaintiffs (the African Continental Bank) who are now the Respondents in this Court. and who would hereinafter be referred to as the Respondents in this judgment, took out a writ of summons against the Defendant. Chief Festus Sunmola Yesufu, who is the Appellant in this court, and would hereinafter be referred to as the Appellant
. for the sum of N1,128.057.40 (One Million, One Hundred and Twenty-Eight Thousand, Fifty-Seven Naira, Forty Kobo) being money granted to the Defendant at his request. by way of overdraft accommodation and/or facilities from the plaintiff who are Bankers. As at 30th April 1976, the defendant was granted the total sum of N1,128,057.40, aforesaid, as overdraft drawn on his current account No.2285 with the plaintiff at Benin City within the Benin Judicial Division. The said sum of N1,128.057.40 which included the principal, interest and other bank charges calculated up to and inclusive of 30th April, 1976, has since become due and payable by the defendant to the plaintiff, but in spite of repeated demands made by the plaintiffs, the defendants neglects and/or refuses to pay."
There were also a claim for interest at the rate of 9%, a declaratory claim and a claim for specific performance to wit
(a) A declaration that the plaintiff is entitled in terms of the deed of mortgage registered as No. 29 at Page 29 in Volume 10 of the Lands Registry in the Office at Benin City, to exercise the power of sale over the defendant's landed property situate and lying at No 48 Lawani Street, Benin City, the title deed of which was of the Lands Registry in the Office at Benin City.
(b) Specific performance compelling the defendant to make and execute a valid legal deed of mortgage of the landed property together with any building thereon situate and lying at Ward 'C' Lawani Street, Benin City, the title deed of which was registered as No.41 at page 41 in Volume 48 in the Lands Registry in the office at Benin City and deposited with the plaintiff by way of an equitable mortgage by the defendant, as an additional security for the overdraft facilities accommodation aforementioned granted to the defendant.
After pleadings had been duly filed and evidence taken, the learned trial Chief Judge of Bendel State, V. E. Ovie-Whiskey, C.J. in a considered judgment entered judgment for the Respondents in the sum of N661,993.42. He dismissed all the other claims.
Both parties were dissatisfied with this judgment and they both appealed to the Federal Court of Appeal. Their Lordships of the Federal Court of Appeal, Eboh, Agbaje and Nnaemeka-Agu, JJ.C.A. having heard arguments on the appeal and cross appeal, in a well considered judgment, allowed both the appeal and the cross appeal, the sum total of which resulted in setting aside the judgment and order of award made by the learned Chief Judge in favour of the Respondents and in its place they entered a non-suit. In entering the order of non-suit their Lordships said
"There is no doubt in our minds that the defendant is indebted to the plaintiff in some amount of money having regard especially to Exhibit 8 in this case. It is just that it is not possible to quantify the amount of his indebtedness on the authorities and the evidence before the court. We are however satisfied that this is not a case where the plaintiffs' case should be dismissed since that undoubtably will be wronging the plaintiff. On the evidence before the lower court the defendant definitely is not entitled to judgment since it is clear that he owed something to the plaintiff. The defendant even admitted in cross examination that at the time a document, Exhibit 54 was made i.e. 31st December, 1969, he was owing the plaintiff about £9,000 (N18,000.00). The order we propose therefore, to make guided by the decision of the Supreme Court in Chief Dada v. Chief Ogunremi and Another (1967) N.M.L.R. 181 at 185, is to non-suit the plaintiff."
It is against this order of non-suit the Appellant has appealed to this Court, and, quite naturally, this was the only point taken in this appeal before us.
It will now be convenient to set out the facts that led to this order of non-suit.
The Appellant, a customer of the Respondents was granted overdraft facilities at a compound interest of 9% per annum to be drawn on his current account, which he maintained with the Respondents in their Benin City Branch. He used his landed properties in Benin City as security for the overdraft. The Appellant drew various sums on the account. He also operated the account for what he referred to in his pleadings as negotiating or discounting a number of bills or sight drafts which were drawn on irrevocable import letters of credit opened in his favour and/or his company by his overseas customers to whom he exported various grades of locally processed rubber.
To prove their case, the Respondents tendered a lot of documents. Those relevant for the purpose of this judgment would be referred to presently.
Exhibit A is the statement of account of the Appellant with the Respondents. It shows statement from 12/11/66 to April 1976 and the last item therein shows debit of N1,108,057.40. This exhibit was tendered to prove paragraph 11 of the Appellant's statement of claim.
Exhibit 8, dated 21st July, 1971, was written during the currency of Ex.A by the Appellant to the Respondents and it reads
Sarah & Yesufu Trading Company
P.O. Box 151,
Benin,
21st July, 1971
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 clearing 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 sometime to reconcile some of the outstanding 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 action for recovery. I give my honour on this transaction and I promise that 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
Exhibits 18-18N are the original ledger cards containing statement of account of the Appellant the last entry showing that the Appellant was in debit to the tune of N763,798.27 when the account was close as he case was already in court.
The learned trial Chief Judge in coming to the decision aforesaid, relied mainly on exhibits B, 18 to 18N and disregarded Exhibit A. He believed Ex. A was discredited in cross-examination. He accepted the contents of exhibits 18 to 18N as evidence of the transaction between the parties, and regarded Exhibit 8 as an acknowledgement of indebtedness by the Appellant to the Respondents. He said, in regard to this exhibit
I am satisfied beyond any shadow of doubt on the evidence before me, that Exhibit 8 is a letter written by the defendant to the plaintiffs admitting his indebtedness to the plaintiffs on the 21st July, 1971
and then found for the Respondents as already stated.
The learned justices of the Federal Court of Appeal, though satisfied that exhibits 18 to 18N were admissible, however held, relying on s.37 of the Evidence Act, that the statements contained in Exhibits 18 to 18N are not sufficient to charge the Appellant with liability. On Exhibit 8, the learned justices held
We are satisfied as the learned Chief Judge was and as the Supreme Court too was in African Continental Bank Limited V. Festus Sumoila Yesuf(1978) 2 S.C. 93 at 110 when a similar document was involved, that Exhibit 8 does not raise any doubt the defendant's admission of indebtedness to the plaintiff. But one cannot point to anywhere in Exhibit 8 as to the amount of indebtedness admitted by the defendant. So in our view besides Exhibit 8 the plaintiff would still have to furnish legal evidence of the indebtedness of the defendant to it in the sum claimed on the writ of summons .
And having so held, the learned justices concluded that an order of non-suit would meet the justice of the case.
It is to be noted that the order of non-suit, which was made, in this case is the second of such order in the case. The case had once been heard in the Benin City High Court between the same parties in Suit No. B/10/72, though the claim then was for £376,320.10.10 that is, N752,641.00. Judgment was given by the High Court in favour of the plaintiffs, that is, the present Respondents, and on a p peal to this court (see SC. 4211975 reported in 1974 4 S.C.1) the Court, Fatai-Williams, J.S.C. (as he then was) Madarikan and Nasir, JJ.S.C. held that in view of an admission of an indebtedness made in a letter admitted in evidence as Exhibit "O" (which is now Exhibit 8 in the instant case) it would not be fair or just to dismiss the plaintiffs' claim in its entirety. The court therefore entered a non-suit.
The powers of entertaining a non-suit should, it is admitted, be employed advisedly. As it was pointed out by this Court in Craig v. Craig (1967, N.M.L.R. 52, and also in Mandillas & Karaberis Limited v. J O. Oridota (1972) 2 S.C. 47,50, these powers are never only for the purpose of allowing a plaintiff who had failed to prove his case to have another opportunity of doing so. In Craig v. Craig (supra) this court said -
Inevitably a non-suit means giving the plaintiffs a second chance to prove his case. This court has to consider whether in this case that would be wronging the defendant, and on the other hand whether the dismissal of the suit would be wronging the plaintiffs.
See also the general observations in the Nigerian Fishing Company & Others v. Western Nigeria Finance Corporation. S. C. 327/67, a judgment of this court delivered on 27th June, 1969, but unreported. Surely, every case will depend on its own merit and it would not be right to lay down a hard and fast rufe about when to enter a non-suit more than to invoke a general statement. See Dawodu v. Gomez, 12 W.A.C.A. 151, 152; Nwakuche v.Azubike 15 W.A.C.A. 46, Chief Dada v. Chief Ogunremi & Anor. 1967 N.M.L.R. 181,185.
It is rather unfortunate that the Respondents did not take advantage of the order of non-suit made by this court in 1976 especially as that order of non-suit was made precisely as a result of the letter, Exhibit "O" in that case (and now Exhibit 8 m the instant case) whereby the appellant made an admission of indebtedness to the Respondents. Nevertheless, it is my considered view that, having regard to that admission, it would clearly be wronging the Respondents if they are not given yet another chance (albeit the last chance, as there must be an end to litigation), for I am in clear agreement with the Federal Court of Appeal when that court held that
On the evidence before the lower court, defendant definitely is not entitled to judgment since it is clear that he owed something to the plaintiff
The Appellant, upon this admission, should not in the interest of justice be permitted to get away with what he admittedly owes. A thorough examination of the exhibits in this case (even apart from exhibits 5, 18 to 18N) bear out the correctness of this conclusion of the Federal Court of Appeal. Indeed, it would be difficult for the Appellant, in view of the facts of the case, to deny owing "something to the plaintiff". On 8th July, 1970, according to the evidence of the 211d plaintiff witness, Raphael Olufemi Oguntobi, the appellant met the witness at the Advances Control Department at the Lagos Head Office of the Respondents' Bank. Minutes of the meeting were contained in Exhibit 2 which is as follows -
AFRICAN CONTINENTAL BANK LIMITED
From: Advances Control Dept.,
Lagos Head Office Branch.
Our Ref. R00/0000
Date: 8th July, 1970
To: The Manager, Benin Ring Road Branch.
Subject: Mr. F. S. Yesufu. . . £227,747.3.7
Sarah & Yesufu Trad. Co. (Warri Branch). £183,344.15.6
An interview was held today (11.30 a.m.) between Mr. F. S. Yesufu Eke and Mr. S. A. O. Sule, (Manager, Head Office). The following members of the staff were also in attendance: Mr. A. J. Sule and Mr. R. O. Oguntobi for Advances Control Department.
The purpose of the meeting was to find out how Mr. F. S. Yesufu Eke would liquidate his accounts at Benin Ring Road Branch and also at Warri. After Mr. F. S. Yesufu Eke had stated his supposed difficulties with the bank and Mr. S. A. O. Sule's reiterating the bank's willingness to help him always, Mr. F. S. Yesufu promised:
1. To pay into the Warri account £30,000 in July, 1970 either by cash or bills but that he should be allowed to withdraw any excess above £30,000 so that he might plough this back into his business.
2. To clear up the balance of Warri Account within the year.
3. To reduce Benin Ring Road account regularly and to clear it very soon. The Manager, Head Office also directed that Branch Managers should not put embargo on the accounts of the customer and that the customer should be allowed to withdraw between 40 and 50% of any payments for his business pursuits.
(Sgd.)???
for: Manager
Advance Control Dept.
The Appellant at that meeting not only admitted, "owing something" to the Respondents but undertook to liquidate the debt within a year. Obviously he failed to honour this pledge for it was quite a year later he wrote Exhibit 8 which I have already discussed (supra) showing his intention to liquidate his "total indebtedness with the Bank on or before the end of September 1971 or substantially reduce the amount.
Another exhibit worth examining is Exhibit 54. The Federal Court of Appeal did refer to this exhibit in their judgment. In that exhibit, a letter by the Appellant to the Respondents, the Appellant expressed a regret
that owing to the difficulties in getting U.S.A. and Canada ports (sic) ship to Sapele port and also our own transaction with the Marketing Board which we have not been able to complete because of some hitch in documents,
he would be unable to meet up the balancing of the accounts with the Respondents at the end of December 1969. This is a clear admission of indebtedness. Finally, and as the Federal Court of Appeal pointed out in their judgment, the Appellant also admitted in the trial court that he owed about N18,000 as at the date he wrote exhibit 54. Certainly, all these present a clear picture of an admission of indebtedness to the Respondents through the exact amount was in doubt.
It is as a result of all these that I hold the respectful view that the Federal Court of Appeal was right in coming to the conclusion that it would be unjust to dismiss the claim of the Respondents with this admission by the Appellant on record.
As I said earlier, it is most unfortunate the Respondents failed to take full advantage of the opportunity granted them by this court in the earlier appeal S.C.42/1975. For the least, the Respondents should then have done, after being granted an order of non-suit, to use the words of the Federal Court of Appeal
. by way of supporting evidence for the entry in Exhibits 18 to 18N, would be to put the cheques so drawn by the defendant in evidence or if they have been destroyed or lost to give secondary evidence of them.
The Respondents could not have a better indication.
It is therefore, for the foregoing reasons, that on the evidence before the trial court, the Appellant is certainly not entitled to judgment having clearly admitted owing something to the Respondents, that I find myself in respectful agreement with the dismissal of the appeal and affirmed the order of non-suit made by the Federal Court of Appeal.
Judgment delivered by
Irikefe. J.S.C.
This is a second appeal. The respondents' claim against the appellant in the Benin Judicial Division of the High Court of Bendel State reads as follows:
The plaintiffs' claim against the defendant is for the sum of N1,128,057.40 (One Million One Hundred and Twenty-Eight Thousand Fifty-Seven Naira, Forty Kobo) being money granted to the defendant at his request, by way of overdraft accommodation and/or facilities from the plaintiff who are bankers. As at 30th April, 1976, the defendant was granted the total sum of N1,128,057.40 aforesaid, as overdrafts drawn on his current account No. 2285 with the plaintiff at Benin City within the Benin Judicial Division. The said sum of N1,128,057.40 which includes the principal, interest and other bank charges calculated up to and inclusive of 30th April, 1976, has since become payable by the defendant to the plaintiff, but in spite of repeated demands made by the plaintiff, the defendant neglects and/or refuses to pay."
There were other claims, which are not now relevant for the purpose of this appeal
After a hearing in which evidence was called on either side, Ovie-Whiskey, (C.J.) on 21st June, 1977 upheld the respondents' claim and awarded the sum of N661,993.42 out of the total sum shown on the writ. The appellant being aggrieved by the above decision, appealed to the Court of Appeal which court, on 31st May, 1979, allowed his appeal and made an order non-suiting the action. The Court of Appeal came about its ultimate order in the appeal in the following words:-
There is no doubt in our minds that the defendant is indebted to the plaintiff in some amount of money having regard especially to Exhibit "8" in trils case. It is just that it is not possible to quantify the amount of indebtedness on the authorities and the evidence before the court. We are however satisfied that this is not a case where the plaintiffs' case should be dismissed since that undoubtedly will be wronging the plaintiffs. On the evidence before the lower court the defendant definitely is not entitled too judgment since it is clear that he owed something to the plaintiffs. The defendant even admitted in cross-examination that at a time a document, Exhibit 54 was made i.e. 31st December, 1969, he was owing the plaintiffs about £9,000 (N18,000). The order we propose therefore, to make guided by the decision of the Supreme Court in Chief Dada v. Chief Ogunremi & Anor. 1967 N.M.L.R. 181 at 185 is to non-suit the plaintiffs.
The appellant being again dissatisfied with the order of non-suit has now appealed to his court. After hearing the appellant's counsel on 26th November, 1979, and without calling upon the respondents' counsel, we dismissed this appeal and indicated that we would give our reasons for doing so at a later date. The following are my reasons.
This appeal involves a short point of law and in so far as the facts are material for its determination, there is substantial agreement on them as between the parties. The said facts are set out in the judgment of my learned brother, Eso, J.S.C. which I had had the privilege of reading. It is common ground that the appellant operated a current account No.2285 at the respondents' bank in Benin City at all times material to this action. It is also common ground that the appellant had written Exhibit "8" dated 21st July, 1971 to the respondents asking for time to liquidate his unspecified indebtedness to the respondents and also for an opportunity to reconcile documents, in order to reduce the quantum of the said indebtedness, after it might have been ascertained.
In deciding upon an order of a non-suit, the Court of Appeal took the view that such evidence as had been produced before the court of trial in the form of ledger entries, was inconclusive and ineffectual, to meet the needs of the standard of proof in civil matters, in the absence of the production, if available, of the actual cheques from which such entries were compiled.
At the hearing before us, the only point made by counsel appearing for the appellant was that an order non-suiting the claim was an oppressive order in the circumstances of this case as it is tantamount to affording the respondents an unlimited opportunity to establish its claim. I do not agree with this submission. It is the law that a non-suit order should not be made unless two elements are present in the aborted trial, namely:
(a) It must a p pear on the record of the case taken as a whole that the plaintiffs have not failed in toto, and
(b) That in any case, the defendant would not be entitled to the judgment of the court."
This clearly brings into focus the element of fair play, which is all that court proceedings are about.
It would be facile to argue that the above two elements do not exist in this case. In my view, they impinge violently on one's attention.
The attitude of this court as regards the order of a non-suit may be found in the following cases, to mention just a few:
(a) Craig v. Craig (1960) 1A.N.L.R. p.173.
(b) Chief Dada v. ChiefOgunremi (1967) N.M.L.R. p.181.
(c) Onwunalu v. Osademe (1971)1 A.N.L.R. p.1425.
(d) George v. U. B.A. (1972) 1A.N.L.R. (Part 2) p.347
I found nothing that commended itself to me in the argument of the appellant's counsel and I had no doubt in my mind that the appeal lacked merit and should be dismissed as it was in fact done.
The decision of the Court of Appeal in this matter dated 31st May, 1979 is hereby affirmed.
Judgment delivered by
Bello. J.S.C.
The main question for determination at the hearing of this appeal on 26th November, 1979 was whether it was proper to non-suit the Plaintiff as the Court of Appeal had done or whether it was proper to dismiss the Plaintiffs claims under the circumstances of the case. We decided that the Court of Appeal had acted rightly in non-suiting the Plaintiff and we dismissed the appeal accordingly.
The several claims of the Plaintiff in the trial court, the facts and the circumstances of the case have been fully set out by my learned brother, Eso, J.S.C. in his reasons for the judgment of the court which he is about to deliver, and which I had the opportunity to read in draft form. I do not intend to recount them.
In the consideration of the appeal of the Defendant, the Court of Appeal observed and concluded:
We are satisfied that barring Exhibit 18-18N in this case there is nothing to show that the defendant was indebted to the plaintiff in the sum of N661 ,993 .40 for which judgment was given against him by the learned Chief Judge as overdraft. Since as we have pointed out, the entries in Exhibit 18-18N are not alone sufficient to fix the defendant with liability, we are satisfied that the judgment of the learned Chief Judge in this matter cannot stand.
In respect of the cross appeal of the Plaintiff, the Court of Appeal concluded as follows:
Since we have held that the judgment in favour of the Plaintiff cannot stand, it follows that the declaratory reliefs sought by the Plaintiff and the interest claimed by the Plaintiff on the overdraft the subject matter of the action before the court cannot stand also.
The Court of Appeal then went on to state the factors they took into account
before making the order of non-suit. As regard the Plaintiff's claim for interest, they expressed the view that the trial Chief Judge was in error in holding that the Plaintiff was estopped from charging interest from March 1972. They held that the Plaintiff was entitled to interest on the overdraft to the defendant, if proved, from March 1972 up to the date of judgment. They were also of the opinion that the Chief Judge erroneously applied section 68 of the Stamp Duty Law (Cap. 118) Laws of Western Nigeria to Exhibit 4 and that he was wrong in holding that the Mortgage Deed, Exhibit 4, was enforceable only in respect of the sum of N800 stated therein. Finally, the Court of Appeal stated:
There is no doubt in our minds that the defendant is indebted to the plaintiff in some amount of money having regard especially to Exhibit 8 in this case. It is just that it is not possible to quantify the amount of his indebtedness on the authorities and the evidence before the court. We are, however, satisfied that this is not a case where the Plaintiff's case should be dismissed since that undoubtedly will be wronging the Plaintiff. On the evidence before the lower court, the defendant definitely is not entitled to judgment since it is clear that he owed something to the Plaintiff. The Defendant even admitted in cross-examination that at the time a document, Exhibit 54 was made i.e. 31st December, 1969, he was owing the Plaintiff about £9,000 (N18,000). The order we propose therefore, to make guided by the decision of the Supreme Court in Chief Dada v. Chief Ogunremi & Another (1967) N.M.L.R. 181 at 185 is to non-suit the Plaintiff.
The ground of appeal relating to the order of non-suit is wanting in brevity but since it embraces the substance of the argument of learned counsel for the Appellant in his brief, I think it is necessary to set it out in full. It reads:
1. The learned Justices of Appeal erred in law in non-suiting the plaintiff after allowing the defendant's appeal and setting aside the judgment of the lower court when the proper order should in the circumstances, have been one dismissing the plaintiff's case in its entirety.
Particulars of Error:
(a) The pleadings and the judgment of the lower court made it clear that there was a previous action, Suit Number B/10/72 on the same subject-matter between the same parties, in which the plaintiff was non-suited on appeal by the Supreme Court vide Appeal Number S.C./42/1975 reported in (1976) 4 S.C. pages 1-22 but the learned Justices of Appeal did not advert to this and the great injustice the defendant will suffer by the door being left open for the plaintiff to start fresh proceedings all over again against the defendant especially, in view of their Lordships' opinion which in effect, allowed the plaintiff's cross-appeal on item b of its claim viz: the right to interest up to and including the date of judgment in an action.
(b) The insufficiency or lack of evidence on which the order of non-suit was based, was on a point more specifically pleaded and put in issue by the defendant in paragraphs 7 and 8 of the Statem