CITATION: NSCC 12
ADEMOLA CHIEF JUSTICE OF THE FEDERATION
BRETT JUSTICE, OF THE FEDERATION
HUBBARD JUSTICE, OF THE FEDERATION
AFRICAN CONTINENTAL BANK LTD.,
JOSEPHAT O.E. AGBANYIM RESPONDENT
HUBBARD, Ag. F.J.: (Delivering the Judgment of the Court)
This is an appeal from the judgment of Hoarce Stanley Palmer, J., in the High Court of the Eastern Region, sitting at Calabar, given in two consolidated civil actions (Suits Nos. C/30/1958 and C/33/1958) in which the African Continental Bank Limited, the present appellants, claimed that on 1st May, 1958, the balance of the current account of Mr. Agbanyim, the respondent respondent, was a debit of £8,150:8s:8d, while the respondent claimed that it was a credit of £3,561:17s:10d. The difference between these two figures, namely, £11,712:6s:6d, is composed of two sums which the respondent alleges, but the appellants deny, that he paid in, namely £1,666:18s:8d and £9,240, together with the sum of £805:9s:10d, being bank charges from 14th June, 1957 to 30th April, 1958. The sums for bank charges was claimed in paragraph 21 of the appellants statement of claim in Suit No. C/33/1958 and denied in paragraph 10 of the respondents statement of defence in that action. It was not again referred to at the trial or on appeal, although it appears, in the form of a series of monthly debits, in the appellants ledger sheets giving the respondents account (Exhibit D). The validity of this claim for bank charge was obviously dependent on the success of the appellants claim regarding the other two sums.
At the trial the respondent gave evidence that he had deposited the two sums in issue by handing them to Mr. Onwuteaka, the then Manager of the appellants branch at Calabar. He said he did this on the verbal instructions of the Manager, both deposits having been made after public banking hours, and, indeed, only a short while before the bank closed altogether at 5 p.m.. On each occasion his paying-in book was returned to him by the Manager, apparently duly stamped, on the following morning. It was stamped by means of a rubber stamp giving the date of the payment-in, marked Cashier No. 1, and bearing what appealed to be initials, although the initial were different in the two cases (Exhibits B and C). The learned Judge, who had the opportunity of seeing the respondent in the witness box and under cross examination, found, that the plaintiff did pay these two sums into the bank and that he received Exhibits B and C as receipts. There was not one word in the evidence of the two witnesses for the appellants which directly contradicted the evidence of the respondent, and the learned Judge, on the evidence before him, was clearly entitled to make this finding.
It was contended before us by Mr. Nonyelu, for the appellants, that, assuming that the money had been paid in and that Mr. Onwuteaka had embezzled it, the appellants would not be liable, and he cited Barwick v. English Joint Stock Bank (1867) 2 Ex. 259. With respect, it is difficult to see how that case can help him, since the Court there held that the bank would be liable for the fraud of its Manager, if in fact he had been fraudulent the case was before the Exchequer Chamber on a bill of exceptions after the trial Court had non-suited the plaintiff and Willes, J., in differentiating the Barwick case from an earlier one which had been cited to him, pointed out that in the earlier case the agent whose conduct was complained of was not their general agent in business, as the Manager of a bank is. In my view on the evidence before him, the learned Judge was right in holding the bank liable.
There was, however, one matter with which the learned Judge did not deal, namely, an allegation of forgery. This allegation, which was to the effect that Exhibits B and C are forgeries and do not come from the bank, and consequently are forgeries emanating from the respondent, was made for the first time by Counsel for the appellants in his final address to the Court below, although the suggestion that they were forgeries, but not that the respondent forged them, was put to the respondent in cross-examination. Just before his final address in the Court below Counsel for the appellants had applied for an adjournment to call other witnesses. This application was rejected. The record does not show what witnesses he wished to call, but Mr. Nonyelu told us it was desired to call Mr. Onwuteaka, the appellants Calabar Manager at the relevant time, and an expert to testify as to the genuineness or otherwise of Exhibits B and C.
The granting of an adjournment is a matter within the discretion of the trial judge. Is there any reason why we should interfere with his exercise of it? Mr. Nonyelu has cited to us the case of Enitan Edun 14 W.A.C.A. 642), but there can be no suggestion that Palmer, J., acted towards the appellants Counsel in this case as the learned Judge in Enitan Edun did towards the plaintiffs Counsel in that case. In the actions from which this appeal arises pleadings were completed on 25th July, 1958. On 12th August, 1958, the actions were consolidated and adjourned to the next sessions. On 2nd December, 1958, the actions were adjourned on the appellants application. There were two further adjournments, and on the 9th July, 1959, Palmer, J.,began the hearing, having previously warned Counsel that there would be no further adjournment, since he was going on transfer to Enugu and did not wish to leave any part-heard cases in the Calabar Division, and Counsel having stated that they were ready to go on with the case.
Mr. Nonyelu contends that the learned Judge should have allowed a further adjournment in the interests of justice since the appellants were taken by surprise when Exhibits B and C were produced at the trial. Now, undoubtedly, there may be cases where, In spite of a warning that no further adjournment will be granted, the Interests of justice do require that the Court should grant an adjournment. The present case, however, in my view, is not such a case.
In the first place, for a party successfully to contend that a piece of evidence has taken him by surprise, the evidence, in my view, must not be such that he should have anticipated it and taken steps to make himself acquainted with ft. The respondent had alleged that two payments-in had not been credited to him (see paragraphs 6 and 7 of his defence in Suit No. C/33/1958). It is quite incredible that the appellants should not have anticipated that the respondent would produce some written evidence in support of his claim. To ask for discovery is not a recondite use of the Rules of Court, and the most recently called member of the bar would know that this course was open to him. It is difficult to resist a suspicion that the appellants were merely engaging in delaying tactics and knew that they had no answer to the documents which would be produced against them.
Secondly, after Exhibits B and C had been put in by the respondent, the evidence led on behalf of the appellants were quite insufficient to raise even a prima facie case of forgery. The only evidence from the present Manager of the bank was that the rubber stamps on Exhibits B and C were not the banks cashiers stamps. He did not deny that the rubber stamps on Exhibits B and C were produced by a stamp in the possession of the bank. As regards the initials on Exhibits B and C he merely said that the initials on Exhibit C were not those of the banks cashier. He did not say that they were not the initials of Mr. Onwuteaka. He presumably knew the initials of the former Manager, and in any case the action was tried in Calabar where the branch concerned was situated, and numerous examples of Mr. Onwuteakas initials must have been readily available. The evidence of the banks cashier was that his initials were not on Exhibits B and C. He did not deny that the initials on these Exhibits were those of Mr. Onwuteaka, although he, too, presumably knew the initials of a Manager under whom he had worked. Further, in answer to questions put by the Court, he said: I do not know if the Manager had a stamp with Cashier marked on it..... When the Manager took money he would sometimes stamp the book himself. I cannot say if the stamp on Exhibit C is one of the bank stamps, because the bank has many stamps, but that stamp is not the one I used.
Finally, as regards Mr. Onwuteaka, it is clear from Exhibit A that he has already made one false and serious accusation against the respondent, and this evidence in this case would have been worthless.
Taking all these matters into consideration, I am of the opinion that there is no justification whatsoever for interfering with the learned Judges refusal to allow any further adjournment. I would add that no application was made to call fresh evidence before us, although this course was suggested by the Court. Had the appellant filed an affidavit naming the witnesses they wished to call and setting out precisely the evidence which each would give, this would at least have given us some ground to suppose that the allegation of forgery by the respondent had been seriously put forward.
I would, therefore, dismiss this appeal with twenty guineas costs to the respondent.
.: I concur
Brett , F.J.: