Aeroflot v. U.B.A Ltd (1986)

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AEROFLOT SOVIET AIRLINES

V.

UNITED BANK FOR AFRICA LTD.

SUPREME COURT OF NIGERIA

SC.224/1984

KAYODE ESO, J.S.C. (Presided)

MUHAMMADU LAWAL UWAIS, J.S.C.

DAHUNSI OLUGBEMI COKER, J.S.C.

ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C. (Read the Lead Judgment)

C’HUKWUDIFU AKUNNE OPUTA, J.S.C.

FRIDAY, 16TH MAY, 1986

ACTION – Money had and received – How constituted.

BANKING – Payment by customer into account – How proved.

CONTRACT – Quasi-Contract – Claim for money had and received – Ingredients.

JUDICIAL PRECEDENT – Ratio Decidendi and obiter dictum – How identified.

Issues:

1.
Whether the appellants actually paid the said sum of N9,750.00 into their account with the respondent Bank.

2.
If the sum was so paid, whether the Court of Appeal was right to have set aside the decision of the learned trial Judge and to have proceeded to dismiss the appellants’ claim.

Facts:

The appellants, (plaintiffs in the lower court) were customers of the respondent bank and had an account maintained .at the Central Lagos Branch of the Bank. Between 5th May 1978 and 22nd May 1978, the appellants paid into their account a sum of N9.750.00. These deposits were duly recorded in the Respondents’ tellers and the tellers were duly stamped with the respondents’ “Cashier No. 5 Stamp” and also initialled.

When the Appellants received a statement of their account, they discovered that this sum of N9,750.00 was not credited to their account. The appellants then wrote to the respondents several letters informing them of this omission. All these letters were ignored. The appellant then brought an action claiming inter alia –

       (1)         Damages for conversion in the said sum of N9,750.00.

(2)
Alternatively, payment of the said sum of N9,750.00 as money had and received by the (defendants) Respondents to the use of the Appellants.

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The respondents in their defence denied ever receiving, the N9,750 or any other sum from the appellants and that the cash received stamp impression was not theirs. Since the Cashier No. stamp used on the tellers was reported missing. The learned trial Judge at that time considered the evidence and entered judgment for the Appellants on the ground that the appellants actually paid the money to the respondent Bank and that the respondent Bank had been negligent in allowing a stamp which was reported missing to have been used.

The Respondents appealed to the Court of Appeal which court allowed the appeal and dismissed the appellants’ claims on the ground that the trial Judge based his judgment on negligence which was not pleaded on appeal to the Supreme Court by the Appellants.

Held (Allowing the Appeal by Majority; COKER, J.S.C. Dissenting):

1.
The common law action for money had and received has always been used

(a)
Whenever conversion lies and money has been received on behalf of the plaintiff by the defendant, to compel the defendant to restore such money to its true owner: (Per KARIBI-WHYTE, J.S.C.)

(b)
where a customer claims that his banker received money on his account: (Per KARIBI-WHYTE, J.S.C.)

(c)
where an action for conversion may be unavailable: (Per KARIBI-WHYTE, J.S.C.)

(d)
where money has been paid by mistake: (Per ESO, J.S.C.)

(e)
Upon a consideration which happens to fail (Per ESO, J.S.C.)

(f)
where money was got through imposition; or extortion; or oppression; or an undue advantage taken of the plaintiff’s situation contrary to the laws made for the protection of persons under those circumstances: (Per ESO, J.S.C.)

(g)
In such other circumstances where the defendant is obliged by the ties of natural justice and equity to refund the money: (Per ESO, J.S.C.)

2.
An action for money had and received will not lie where the money is irrecoverable from the defendant by any course of law, e.g.

(a)
Payment of a debt which is statute-barred.

(b)
Payment on a contract entered during infancy.

(c)
Payment of principal and interest based on usury or a wagering contract.

3.
An action for money had and received is alternative to conversion and can even lie as an independent cause of action where the action for conversion is unavailable.

4.
In an action for money had and received, the negligence of the defendant is not a necessary element of the liability.

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5.
Where it is established that an official of a hank makes use of the Bank’s property to receive money from a customer, the Bank would still be liable in negligence even if all measures were adopted to prevent such official from so doing.

6.
In the instant case, the Court of Appeal was wrong to have held that the trial Judge based his judgment on negligence as it was clear that w hat he found was that the Appellants actually paid the money to the respondent’s Bank and that it was as a result of the respondent Bank’s carelessness that the appellants’ account was not credited with the sum.

7.
Payment of money into an account can be established either by the oral evidence of the man who actually paid the money or by producing a receipt from the bank showing on the face of it that it received the payments.

8.
A teller, duly stamped with the Bank’s stamp and initialled constitutes prima facie proof of payment and a customer after producing such receipt need not go further to show that it was infact an official of the Bank who actually stamped and initialled the teller and that he had the authority of the Bank to so do.

9.
Per ESO, J.S.C.:

“In the normal banking practice, stamping and initialing such entry in the teller constitutes an acknowledgement by the Bank of the receipt of the sum from the customer.”

10.
Per UWAIS, J.S.C.:

“Now, in the appeal before us, the respondents have not filed a cross-appeal complaining against the failure of the Court of Appeal to consider their contention under the said ground. I am therefore unable to see the basis on which the issue of the proof of the payments made by the appellants to the respondents’ Cashier can be a point that positively calls for our attention.”

11.
Per KARIBI-WHYTE, J.S.C.:

“It is well settled that where two reasons are given for a judgment, they may both constitute the ratio decidendi for such judgment. Jacobs v. L.C.C. (1950)1 All ER. 737, London Jewellers Ltd. v. Stentorough (1934) 2K.B. 206.reason given by a Judge is not to be regarded as Obiter dictum merely because another reason equally valid reason was also given. Where however in a judgment two reasons appear to have been given, the ratio decidendi can only be that reason which is consistent with the facts and the claim before the Court.?

12.
Per OPUTA, J.S.C.:

“The direct and primary question is: How is a customersatisfied that his money has been paid into his hank? Put in another way, what is the proof that money has been paid into and received by a Bank? There may be oral evidence of the man who actually paid the money. This is the point taken up in the dissenting judgment of my learned brother

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Coker. J.S.C. I agree entirely that this is one way of proving that money has in fact been paid into a Bank. But oral evidence is valueless if it is not believed. It is only when and when the trial court believes the witness who testified that he paid the sum of money in dispute into a bank that his evidence may constitute proof of such payment.”

Nigerian Cases Referred to in the Judgment:

Abowaba v. Adesina 12 WACA 18

African Continental Bank v. Agbanyim 5 FSC 18

George v. Dominion Flour Mills Ltd. (1963) 1 All N.L.R. 71

George v. U.B.A. (1972) 8-9 S.C. 274

Jobi v. Oshialaja (1963) 1 All N.L.R. 12

Ochonma v. Unosi (1965) NMLR 321

Sonuga v. Anadein (1967) N.M.L.R. 77

Foreign Cases Referred to in the Judgment:

Coleman v. Riches (1955) 16 C.B. 104

Commonwealth Shipping Rep. v. P. & O. Branch Services (1923) AC 191

Doherty v. Royal Bank of Scotland (1963) S.L.R. (Notes) 43

Fibrosa Spolka Akgna v. Fairbam Lawson Combe, Barbour Ltd. (1943) A.C. 32

George Whitechurch Ltd. v. Cavanagh (1902) A.C. 117

Jacob v. Monies (1902) 1 Ch. 816

Jacobs v. L.C.C. (1950) 1 A.E.R. 737

Lloyd v. Grace, Smith & Co. (1912) A.C. 716

London Jewellers Ltd. v. Stentorough (1934) 2 K.B. 206

McKenzie v. British Lines Co. (1881) 6 A.C. 82

Morris v. C. W. Martin & Sons Ltd. (1966) 1 Q.B. 716

Ruben v. Corcat Fingall Consolidated (1906) A.C. 439

Sun v. Hing (1951) A.C. 489

Nigerian Statutes Referred in the Judgment:

Evidence Act, S.76 Supreme Court Act 1960, S.22

Appeal:

This was an appeal against the decision of the Court of Appeal sitting at Lagos which Court set aside the decision of Martins, J. and dismissed the appellants’ claim for the sum of N9.750.00. The Supreme Court allowed the appeal and restored Martins J’s decision.

History of the Case:

Supreme Court:

Date of Judgment: Friday. 16th May. 1986 Names of Justices that sat on the appeal: Kayode Eso, J.S.C. (Presided), Muhammadu Lawal Uwais, J.S.C., Dahunsi Olugbemi Coker, J.S.C. (Dissented), Adolphus Godwin Kanbi-Whyte, J.S.C.

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(Read the Lead Judgment), Chukwudifu Akunne Oputa, J.S.C., 

Names of counsel: Folarin Popoola – for the Appellant

Samuel N. Nkweke (with him B. N. Nwokolo) – for the Respondent

Conn of Appeal:

Division of the Court of Appeal from which the appeal was brought: Court of Appeal, Lagos

Names of Justices that sat on the appeal: B. O. Kazeem. J.C.A. (Presided), Uthman Mohammed. J.C.A. (Read the Lead Judgment), Idris Legbo Kutigi. J.C.A.

Appeal No.: FCA/L/127/83

Date of Judgment: Thursday, 26th April, 1984

Names of Counsel: Mr. S.N. Nweke – for the Appellant

E. O. Adebomi – for the Respondents.

High Court:

Name of the High Court: High Court of Lagos

Name of the Judge: B. Ola Martins

Suit No.: LD/1218/80?

Date of Decision: Tuesday, 30th March, 1982?

Names of Counsel: Mr. Etuka – for the Plaintiff

Mr. Nweke – for the Defendant.

Counsel:

Folarin Popoola – for the Appellant.

Samuel N. Nweke (with him, B. N. Nwokolo) – for the Respondent.

KARIBI-WIIYTE, J.S.C. (Delivering the Lead Judgment): This is an appeal against the judgment of the Court of Appeal. On the 26th April, 1984. the Court of Appeal, holden at Lagos, in a unanimous decision of the lead judgment of Uthman Mohammed, JCA. reversed the judgment of Martins J. of the High Court of Lagos State which entered judgment for appellants as plaintiffs in an action for money had and received against the respondents as defendants.

The facts of the case in the trial Court were that appellants were at all material times the customers of the Respondent Bank, and had an account with them. Appellants also in the normal course of business paid money into the respondent’s Bank in a teller provided by the Respondent’s Bank. As evidence of acknowledgment of each money so paid. Respondent Bank stamped and initialed the teller through which the money was paid. At the end of each month. Respondent Bank sent to appellant a statement of the account of Appellant in the Respondent Bank, reflecting sums paid into Respondent Bank in favour of the Appellant.

In June, 1978, when the statement of account for May was received appellant discovered that certain sums paid into Respondent’s Bank in favour of the appellant for the days 5, 9, 12, 17, 22 were not reflected in the statement of account, resulting in a total shortage of payment of N9,750. Appellant then wrote several letters

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dated 6th, 12th, 13th June, 1978, to the respondent to point out this omission and asked for rectification. The Respondent’s Bank did not reply to the letter complaining about the fact or the reminders. The appellants thereafter reported the matter to the Police for action and subsequently brought action against the Respondent’s Bank, claiming as follows –

1.
Damages for conversion in the said sum of N9,750.00.

2.
Alternatively, payment of the said sum of N9,750.00 as money had and received by the Defendants to the use of the Plaintiffs.

3.
Interest on the said sum of N9,750 at current bank rate from 5/5/78.

In paragraph 3 of the statement of claim admitted by the Respondent Bank.

Appellants maintained a current account No. 7043 at the Respondent’s Central Lagos Branch at No. 97/105 Broad Street, Lagos and went on to plead further as follows:

4.
“On various dates in May 1978 the plaintiff brought its messenger one Christopher Onyeogani deposited various sums of money in cash with the Defendant to the Credit of the plaintiffs said account that is to say?

On 5/5/78                 Plaintiffs deposited                             N2,500.00

On 9/5/78                 Plaintiffs deposited                             N1,250.00

On 12/5/78               Plaintiffs deposited                             N2,500.00

On 17/5/78               Plaintiffs deposited                             N500.00

On 22/5/78               Plaintiffs deposited                             N3,000.00

                             N9,750.00

These various deposits had been duly recorded on the Defendants’ tellers (paying-in slips) and their receipt by the Defendant bank duly acknowledged by the Defendant’s Cash Received Stamp impression. The said tellers (paying-in slips) are hereby pleaded and shall be founded upon at the trial.

5.
Sometime in June 1978 the Plaintiffs received from the Defendants a statement of the plaintiffs’ said current account. The plaintiffs then discovered that the deposits enumerated in paragraph 4 above had not been credited to their said current account. The statement dated 6th June. 1978 is pleaded.

6.
Thereupon the plaintiffs on 6th June, 1978 by a letter complained to the Defendants about the unrecorded deposits. Receiving no reply the Plaintiffs sent a reminder on 12th June, 1978 and again on 13th June. 1978. These letters are hereby pleaded and shall be relied upon at the trial.

10.
In the premises, the Defendants have wrongfully deprived the Plaintiffs thereof, whereby the plaintiffs have suffered damages to the value of the sum of the said deposits.

11.
In the alternative, the Defendants have had and received the said sum of N9,750 to the use of the plaintiffs and are liable to repay the said sum to the Plaintiffs.”

The Respondents in paragraph 4 of their statement of defence denied paragraph 4 of the statement of claim in its entirety and admits the averments in paragraphs 5, 6, of the statement of claim. Respondents also denied the averments

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in paragraphs 10 and allegations in paragraph 11(1) and (2) of the statement of defence.

Thus, at the trial only those facts in respect of which issues were joined were before the trial court for consideration. This is essentially the averments in paragraphs 4, 10 and 11 of the statement of claim. The issue then concisely stated was whether the sums claimed to have been paid by the Appellant into the Respondent Bank on his behalf were so paid. Accordingly, if they were so paid, is the Respondent Bank liable to the Appellant if the sums were not credited to the account of the Appellant.

Before the trial Court, Appellant gave evidence of the payment of the sums alleged not credited to its account, by showing that the teller used in paying the money was stamped with the Respondent Bank’s stamp normally used in the normal course of duty. Evidence of handwriting and document experts were called to establish whether the document and the initials were a forgery. The evidence of the experts did not disclose there was any forgery and indeed they were both positive that both the stamp and the document were genuine.

The defence of the appellants was that no such money claimed by the appellant was paid into the account of the appellants on the dates alleged, because as they said, the Cashier’s stamp used to authenticate the paying in tellers were during that period not in use, having been reported missing. Furthermore the signature of the cashier on the stamp could not be that of the person so claimed because he was on leave between March 23 and May 15, 1978 at the relevant period, and on resumption did not work as Cashier Stamp No. 5.

In his finding, the trial Judge stated as follows –

“It is abundantly clear that the monies were paid into the bank the defendant has not called any evidence in rebuttal to say that the monies were never received by the defendant or paid into the defendant bank. The evidence of the 1st P.W., that these monies were paid into the bank stood unchallenged. What the defendants were saying was that the stamps on the teller booklets Exhibits B to B4 were not that of the bank as the Cashier Stamp No. 5 was missing at the time the monies were paid in. Query: How did cashier stamp No. 5 get to be stamped and initialed on Exhibits B to B4. Evidence of the 2nd and 3rd PW.S. was that there were similarities both on the stamp impressions and initials when compared with the pages the defendant admitted having received monies stated on these pages.”

The learned trial Judge went further to state that.

“… However, a bank would not be permitted to retain money paid in. but omitted to be credited, even if the customer had not noticed its omission from his bank statement.”

Referring to the ‘M’ Kenzie. v. British Linen Co. (1881) 6 AC 82, the trial Judge said.

“Where a bank stamps a paying slip counterfoils, it bears the onus of showing that a different sum was actually received from that acknowledged on the counterfoils.”

The learned trial Judge held Respondents liable on the ground that “on the totality of the evidence and Exhibits tendered. I am of the view that the plaintiffs

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case is proved and judgment is entered in favour of the plaintiff as per his writ of summons with 5% interest with effect from 22nd May 1978. until judgment debt is liquidated.”

The Defendants, now respondents appealed against that judgment to the Court of Appeal. There were three grounds of appeal. I reproduce grounds 1 and 2 relevant grounds relied upon in the Court of Appeal to reverse the judgment of the learned trial Judge. They are as follows:

GROUNDS OF APPEAL

(i)
The learned trial Judge erred in law when he said in his judgment that the defendant was negligent in the performance of its work and so was responsible for the loss of the money, the subject matter of the claim.

PARTICULARS OF ERROR

(1)        There was no pleas of negligence in the statement of claim and consequently  negligence was not an issue in the suit.

(ii)
The learned trial Judge did not call upon any of the Counsel to address him on the issue of negligence before he decided the case.

(iii)
The learned trial Judge misdirected himself on the facts when he held that the plaintiff was entitled to judgment against the Defendant.

PARTICULARS

There was no evidence that the teller alleged to be evidence of payment was signed by a Cashier of the Defendant bank.

(iv)
The judgment is against the weight of evidence.

(v)
That the whole judgment be set aside.

 
21.
In the judgment of the Court of Appeal reversing the trial judge the Court observed,

“The learned Counsel for the appellants, Mr. Nweke submitted that negligence was not specifically pleaded in the statement of claim and it was never an issue at the trial, but the learned trial judge nevertheless rested the whole judgment on the issue of negligence. This is the prime factor of the whole appeal. I agree with Mr. Nweke because it is a fact beyond all doubts that the respondent did not plead negligence in their statement of claim. An allegation of a negligent conduct was neither expressed nor implied and it could not be deduced from the averments in the statement of claim.”

The learned Justice of the Court of Appeal, then referred to passages of findings of negligence on the part of the trial Judge and came to the conclusion that the trial Judge based the liability of the defendants on the findings of negligence against them. The Court of Appeal was thus led into the assumption that even if negligence was established against the respondent, it was not an issue between the parties, and no valid judgment could be founded on such finding – Abimbola George v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71: Ferdinand George v. U.B.A. (1972) 8-9 S.C. 274; Samson Ochonma v. Asinin Unosi (1965) NMLR 321 were cited in support of the view.

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Plaintiffs, who were respondents in the Court below and are now the A appellants, have challenged the judgment of the Court on three grounds of appeal, alleging misdirection on grounds of law and error in law. Concisely stated, the appellants are contending that:

(a)
 the Court of Appeal misdirected itself in law when they concluded that the  learned trial Judge rested the whole judgment on the issue of negligence;

(b)
the Court of Appeal did not decide the appeal before them on the evidence on the printed record and the exhibits tendered at the trial.

The grounds of appeal excluding the particulars are as follows:-

GROUNDS OF APPEAL:

A.
The learned Justices of the Court of Appeal misdirected themselves in law when they concluded that the learned trial Judge “rested the whole judgment on the issue of negligence”.

Particulars:

(i)
the word “negligent” as used in the judgment of the learned trial Judge did not expressly or impliedly connote “negligence’ as tort or legal terminology but was used merely as an English vocabulary in the sense of “nonchallant”

(ii)
the word “negligent”, in whatever sense it was used, occurred only in the learned trial Judge’s “Observations” and not in the findings of the Judge.

(iii)
the learned Justices of the Court of Appeal dwelled solely on the learned trial Judges’s “Observations” and failed to read the last paragraph of the judgment which contained the findings of the trial court and on what the findings were based expressly:

“on the strength of the above observations and on the totality of the evidence and Exhibits tendered, I am of the view that the plaintiffs case is proved and judgment is entered in favour of the plaintiff as per his writ of summons with 5% interest with effect from 22nd May, 1978 until judgment debt is liquidated.” (italics supplied by me).

B.
The learned Justices of the Court of Appeal erred in law when they failed to decide the appeal on the evidence on the printed record and exhibits tendered at the trial court.

Particular of Error

The whole judgment of the learned Justices of the Court of Appeal was based solely and exclusively on the issue of negligence whereas negligence was not the issue between the parties but “money had and received by the defendant to the credit of the plaintiff …. which money the defendants have wrongfully converted to their own use.” In failing to address themselves to the evidence on the printed record and exhibits, and by dwelling extensively, solely and exclusively on “negligence” (which is not the issue between the parties) and in the process dismissed the plaintiff’s claim.

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a miscarriage of justice has occurred, and this miscarriage occurred principally because the learned Justices of the Court of Appeal neglected their duty to re-examine the whole evidence, both oral and documentary, that was tendered at the Court of trial as well as examine the whole course of proceedings as compiled in the record of appeal.

C.
The learned Justices of the Court of Appeal misdirected themselves in law when they set aside the judgment of Martins. J. in the suit No. LD/1218/1980 and entered an order for the dismissal of the suit.

Particulars

(1)
An appeal court which fails to decide the issues between the parties on the printed evidence and exhibits tendered but decides the appeal on technicality of law would be wrong to enter an order of dismissal, which operates by res judicata to bar the plaintiff/appellants from further redress. The order of the Court of Appeal therefore caused substantial injustice to the plaintiff/appellant.

(2)
If the learned Justices of the Courtof Appeal were right in saying in their judgment

“if any evidence was entered suggesting that the appellants were negligent it will go to no issue, and it should be ignored.”

Counsel to the appellants, Mr. Folarin Popoola, and Mr. Nweke for the respondent Bank have both filed detailed briefs of their argument. These were orally expatiated upon before us. The issue could obviously be narrowed down to the only point, whether the Court of Appeal was right in holding that the learned trial judge decided the case before him on the issue of negligence which was not an issue between the parties. This was the only ground considered by the Court of Appeal and on which the judgment of the learned trial Judge was set aside.

In his brief of argument, Mr. Folarin Popoola dealt exhaustively with this issue and analysed the various significance of the use of the word “negligence”, in the case by the trial judge. In his submission, the word “negligent” as used within context had nothing to do with “negligence” as a tort, which must be specifically pleaded. In his view, the word meant no more than its dictionary meaning of “want of attention”, “carelessness”, nonchallant”, “indifferent” or casual”. It was argued that negligence in this sense did not connote a head of liability or damage in respect of which an action could be brought. This being the sense in which the word was used it was not necessary to plead it. since it was not being relied upon in the action. Mr. Nweke in his reply supported the judgment of the Court of Appeal, which represented his submission in that court.

On a careful analysis of paragraphs 4 and 11 of the statement of claim, and paragraph 4 of the statement of defence it is obvious that the claim before the learned trial Judge was only one for (a) Damages for conversion of the sum of N9,750 and (b) Alternatively payment of the said sum of N9,750 as money had and received by the defendants to the use of Plaintiffs; and (c) Interest at the current bank rate from 5/5/78.

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The common law action for money had and received has always been used, wherever conversion lies, and money has been received on behalf of the Plaintiff by the defendant, to compel the defendant to restore such money to its true owner. Since the action for money had and received is alternative to conversion, the Plaintiff is entitled to waive the wrong and sue for money had and received. As Lord Wright expressed it in Fibrosa Spolka Akgna v. Fairbarn Lawson Combe, Barbour Ltd. (1943) AC. 32 at p. 64. 

“the common law still employs the action for money had and received as a practical and useful, if not complete or ideally perfect instrument to prevent unjust enrichment, aided by the various methods of technical equity which are also available, as they were found to be in Sinclair v. Brougham. “

The action for money had and received, though for the purposes of pleadings made alternative to an action for conversion, is an independent course of action: and lies even where the action for conversion may be unavailable. – See Fibrosa Spolka Akeying v. Fairbairn, Lawson, Combe Barbour Ltd. (1943) AC. 32. There seems to be no doubt that a customer’s claim to moneys received by a banker on his account would be for money had and received. Hence when the Plaintiff, a customer of a bank, in action for money had and received proves that the defendant banker has received on his account the money claimed, the Plaintiff is undoubtedly in a position to receive such money.

In an action for money had and received, the negligence of the defendant is not a necessary element of the liability. The essential ingredients are that money due to the Plaintiff has been paid to the defendant and who has been unjustly enriched by such payment. It is therefore unconscientious and contra aequum et bonuni for the defendant to retain it as against the Plaintiff.

The Court of Appeal would seem to have been misled by the contention of the appellant before them and therefore accepted the submission that the learned trial judge decided the case before him and found respondent liable on the principle of negligence. Nothing is further from the true legal position. I agree with the view of Mr. Popoola for the appellants that the use of the word “negligence” in the context can only connote carelessness. This follows upon the contention of the respondents that the stamp of cashier No. 5 was under lock and key, and that the cashier to whom the official use of the stamp was assigned was on leave at the relevant time when appellant claimed that it was used in certifying money paid into the respondent’s bank The stamp nevertheless was used to certify the lodgements of sums of money in favour of the appellants.

It is conceded that the learned trial judge found that the respondents were negligent in not detecting that the stamp for cashier No. 5 which was under lock and key and assigned to a person who was on leave was being used by another during the period it was supposed to be under lock and key and the official supposed to have used it was on leave. This is clearly not a finding that the monies claimed were paid to and received by the respondent bank in favour of the Appellant. There is no doubt that if it is established that the stamp of cashier No. 5 was used by an official of the respondent bank despite the security measures adopted – the bank will be liable in action for negligence. – see Lloyd v. Grace, Smith & Co. (1912) A.C. 716.

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However if the evidence is not one of negligence, but that the payments alleged made by the Plaintiff were in fact made to the defendants in favour of the Plaintiff. Then this will be sufficient establishment of the liability in an action for money had and received in favour of the Plaintiff. I think it is this latter view that appealed to the learned trial judge when he said.

“It is abundantly clear that the monies were paid into the bank, the defendant bank has not called any evidence in rebuttal to say that the monies were never received by the defendant or paid into the defendant bank. The evidence of 1st p.w. that these monies were paid into the bank stood unchallenged.”

This is undoubtedly a finding that the money claimed by the appellant were paid into the defendant bank. It is not a finding that the defendant bank was liable because of a finding of negligence on their part. It seems to me unarguable that the Court of Appeal ignored the finding that the monies claimed by the appellant were paid into the respondent bank, which reasoning was relevant to the claim before the trial judge but accepted the finding of negligence against the defendant which was in no respect relevant to the claim before him. Even if it is conceded that there were two reasons in support of the judgment of the learned trial judge, the approach of the Court of Appeal was wrong. It is well settled that where two reasons are given for a judgment they may both constitute the ratio decidendi for such judgment. Jacobs v. L. C. C. (1950) 1 All E.R. 737, London Jewellers Ltd. v. Stentorough (1934) 2 KB. 206. A reason given by a judge is not to be regarded as obiter dictum merely because another reason equally valid was also given. Where however in a judgment two reasons appear to have been given, the ratio decidendi can only be that reason which is consistent with the facts and the claim before the Court.

In the appeal before us, and in the face of the two reasons for the decision given by the learned trial judge, it cannot be correctly surmised that the finding of negligence Was a possible reason for the decision of the learned trial judge. The only grounds of appeal against the judgment of the learned trial Judge in the Court of Appeal was on the finding of negligence allegedly made by the learned trial Judge. That being the only ground of appeal, and determined by the Court of Appeal is in my opinion patently erroneous. There is no appeal against the finding that the monies claimed by the appellant were paid into the responding bank. That finding remains unchallenged.

The first ground of appeal that the Court of Appeal misdirected itself in law in holding that the learned trial judge rested the whole judgment on the issue of negligence succeeds.

I do not consider it necessary to deal with the other grounds of appeal which are merely amplifications of the first ground. The appeal is therefore allowed. The judgment of the Court of Appeal dated 26th April, 1984 together with the costs awarded is accordingly set aside.

Respondent shall pay N300 as costs to the Appellants.

ESO, J.S.C. (Presiding): I respectfully agree with the judgment which has just been read by my learned brother, Karibi-Whyte, J.S.C. a preview of which I have already had and will also allow the appeal.

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The facts in this case are simple. The Appellants – Aeroflot Soviet Airlines – opened a current account with the United Bank for Africa Ltd., hereinafter referred to as the Respondents, or the Bank as the case may be. According to the normal banking practice, the Bank provided the Appellants with a teller in which the Appellants entered any sum it paid to the Bank. Also, in accordance with normal banking practice, the Bank stamped every entry, after the amount had been paid in by or on behalf of the Appellants.

In the normal banking practice stamping and initialing such entry in the teller constitutes an acknowledgement, by the Bank, of the receipt of the sum from the customer. Indeed, the witness for the Bank gave this evidence. As it is, pertinent to this appeal, I will reproduce the relevant portion of the evidence.

Timothy Olusegun Akanni a Branch Accountant of the Bank gave this evidence of Bank practice. He said –

“Any payment made by the customer of the Bank must be acknowledged and this acknowledgment is in the form of receipt stamp being issued to each receiving cashier. The stamp will be used by the cashier to stamp both the original and duplicate copies of the teller after the cashier has satisfied that the money paid in is correct. The cashier keeps the original of the teller and hands over the duplicate copy to the customer. The payment made by the customer is recorded on the Cashier paying slip. The cashier will initial both copies. This method is not peculiar to our bank alone it is the method used by all banks.

(Italics mine for emphasis)

Before this witness gave the above quoted evidence, a receiving cashier of the Bank one Phillip Adekanmi Adewunmi, called as witness by the Bank, had said –

“on the arrival of a customer to save money on current account we collect the tellers we check that in the teller the account No. is written and the proper names of the customers are entered in the teller. The money is then collected and checked against the figure written in the teller. If they are in agreement the tellers are stamped and initialed. The stamping and initialing is evidence of receipt of money on behalf of the bank. “

   (Italics mine again)

Now, the case of the Appellants was that when they received the statement of account for the month of May 1978, they discovered that certain sums of money for the 5th, 9th, 12th, 17th and 22nd May 1978 were not reflected in the statement though the tellers reflected the entries duly stamped and initialled. This made the appellants to raise a query with the Bank but the Bank showed no reaction. The Appellants thereupon referred the matter to the Police and subsequently filed the present action in Court.

The claim was –

1.
For N9,750 being conversion of money had and received to the credit of the Plaintiffs (the appellants in this Court).

2.
Interest at Bank rate.

3.
N1,000 for taxation.

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The case of the Bank was. however, to deny that the money claimed in the writ was paid to the Bank.

Perhaps it is necessary to state herein the paragraph of the statement of claim which the Bank denied. The Plaintiffs stated as follows –

4.
On various dates in May 1978 the Plaintiff brought its messenger one Christopher Onyeayemi (sic) deposited various sums of money in cash with the Defendant to the credit of the Plaintiffs’ said account that is to say –

On 5/5/78                     Plaintiffs deposited                         N2,500.00

On 9/5/78                     “”                                                       1,250.00

On 12/5/78                   ” ”                                                      2,500.00

On 17/7/78                   ” ”                                                         500.00

On 22/5/78                   ” ”                                                      3,000.00

                                   9,750.00

These various deposits had been duly recorded on the Defendants’ tellers (paying-in-slip) and their receipt by the Defendants Bank duly acknowledged by the Defendants” Cash Received Stamp impression. The said tellers (paying-in-slips) are hereby pleaded and shall be founded upon at the trial.

The Bank’s reaction to this, as I have earlier said, was one of denial but I think it is better to state herein specifically that denial –

“4(i)  The Defendant denies that the plaintiff deposited to its credit a total of N9.750.00 or any other sum as alleged in paragraph 4 of the statement of claim or at all.

(ii)
The defendant further avers that the said cash received stamp impression is not the impression of the Defendants’ stamp as alleged or at all.

(iii)
The defendant denies the receipt of any other form of acknowledgment of any deposit by the plaintiff or at all.”

And so issues were joined – the Plaintiffs/Appellants alleging that they paid in the sum in question to their credit with the Bank as evidenced by the tellers which they pleaded, and the Bank not only denying that deposit but as they themselves said in their pleadings “further averred certain facts to wit” – The cash received stamp impression was not theirs And so, in so far as the onus of proof is concerned, the position is clear. While the Plaintiffs were to prove that they made the deposit, once that had been proved, the onus was on the Defendants that the evidence relied upon by the Plaintiffs, that is, the Bank Tellers were not stamped by the Bank.

The learned trial Judge held after taking evidence that –

“It is abundantly clear that the monies were paid into the Bank, the defendant has not called any evidence in rebuttal to say that the monies were never received by the defendant or paid into the defendant bank. The evidence of the 1st p.w. that these monies were paid into the Bank stood unchallenged.”

As regards the defence put up by the Bank, the Court held –

“What the defendant was saying was that the stamps on the teller booklets …. were not that of the Bank as the cashier stamp No. 5 was missing at the time the monies were paid in”

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On how the stamp got to be stamped and initialled on the tellers, the learned trial Judge held

“Evidence of the 2nd and 3rd p.w. (that is the Chief Superintendent of Police who gave expert evidence as a hand writing expert and an Acting Superintendent of Police also a handwriting expert) was that there were similarities both on the stamp impressions and initials when compared with the pages the defendant admitted having received monies stated in these pages”

In the view of the learned trial Judge, the Defendants treated the missing cashier stamp No. 5 with great levity and they must face the consequence of such negligent act on their pan. The trial Court found in favour of the Plaintiffs and entered judgment in their favour as per the writ of summons with 57c interest.

The Defendants appealed to the Court of Appeal and in a judgment delivered by Uthman Mohammed, J.C.A., with which Kazeem and Kutigi, JJ.C.A. agreed, the appeal was allowed and the judgment of the High Court was set aside.

It is interesting to set out here the basis for the finding of the Court of Appeal. Uthman Mohammed, J.C.A. said –

       “the most important ground of appeal is in respect of an error in law– where the learned trial Judge said, in his judgment, that the appellants were negligent in the performance of their work and so were responsible for the loss of the money …”

                 The learned Justice then indicated that there were “a number of places in the judgment where the learned trial Judge made important findings based on the negligence. He held that negligence was not pleaded in the case, that negligence was a very serious allegation against a party in a case of this nature and when the learned counsel for the Plaintiffs brought to the notice of the Court that the trial Judge did not base his decision on negligence but on the strength of the Judges observation and the totality of the evidence before the Court, the Court of Appeal said learned counsel would not be right in that submission, at the same time, referring to the two last paragraphs in the judgment of the High Court to wit:

“On a serious note the Defendant Bank should have acted swiftly on an issue of serious allegation like this and when they knew that their cashier stamp No. 5 was missing and could not be reached by any outsider than officials of the bank and it was this cashier No. 5 stamp that was used in carrying out this operation. I am of the view that the defendant bank was negligent on the strength of the above observations and on the totality of the evidence and Exhibits tendered I am of the view that the plaintiff’s case is proved and judgment is entered in favour of the plaintiff as per his writ of summons with 5f/f interest with effect from 22nd May, 1979 until judgment debt is liquidated.”

While the Court of Appeal underlined the words “I am of the view’ that the defendant bank was negligent,” thus placing emphasis on those words. I think every word in those paragraphs are of importance, and so not just some should have been singled out for emphasis to conclude whether the judgment was based on negligence as Uthman Mohammed, J.C.A. said or “entirely on what he thought was the negligence of the defendants.” as Kazeem, J.C.A. (as he then was) put it

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in his concurring judgment or on the strength of the learned trial Judge s observations on negligence plus the totality of the evidence and exhibits (that is the tellers which indicated acknowledgment of payment by the Plaintiffs).

The plaintiffs have now appealed to this Court on two grounds of appeal which are fully set out in the Judgment of my learned brother Karibi-Whyte, J.S.C. Briefs were filed and we heard oral arguments –

With respect, I think the Court of Appeal had a complete misconception of the case of the plaintiffs and the treatment given to the evidence by the trial court. The statement of claim shows per adventure that the claim was for damages for conversion of the Plaintiffs’ money paid to the Bank or in the alternative claim for the amount in quasi contract, as money had and received, that is, a claim in enrichment injusta causa.

As far back as 1760, Lord Mansfield in Moses v. Macferlan (1760) 2 Burr 1005 at 1012 had beautifully rationalised the principles behind claim for money had and received. He put it in a prosaic form.

“This kind of equitable action to recover back money which ought not in justice to be kept is very beneficial, and therefore much encouraged. It lies for money which, ex aequo et bono, the defendant ought to refund; it does not lie for money paid by the plaintiff, which is claimed of him payable in point of honour and honesty, although it could not have been recovered from him by any course of law; as in payment of a debt barred by the Statute of Limitations, or contracted during his infancy, or to the extent of principal and legal interest upon a usurious contract, or for money fairly lost at play: because in all these cases the defendant may retain it with a safe conscience, though by positive law he was debarred from recovering. But it lies for money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition (express or implied); or extortion; or oppression; or an undue advantage taken of the plaintiff’s situation, contrary to the laws made for the protection of persons under those circumstances. In one word, the gist of this kind of action is that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money.”

That was Lord Mansfield who, six years later, in Towers v. Berretts (1786) 1 T.R. 133 declared himself to be a great friend to the action for money had and received. He referred to the action as:

“a very beneficial action and founded on principles of eternal justice”

     Whether it is unjust enrichment, conversion, or refund of money had and received on the credit of the plaintiff, it is my view that the claim of the plaintiffs was. as they put it themselves, not in tort of negligence, but for a wrongful conversion of money had and received to the credit of the Plaintiffs. Nowhere did they claim negligence, and so it was not necessary to plead negligence, and if evidence of the negligence of the Defendants was given, it was in process of their denial as to the stamp on the tellers.

The evidence given by the Defendants witnesses is so clear as to Banking procedure and the effect of Bank tellers purportedly signed and initialled by or on behalf of the Bank.

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With such clear evidence as to Banking procedure and with the production of the Bank tellers which were proved to have been stamped and initialled by one of the Bank’s officials, the case for the Plaintiffs has been proved. He has discharged the onus placed upon him. The Defendants failed to discharge the onus, which had shifted on them and the learned trial Judge stood, in my view in an unimpeachable pedestal in finding for the Plaintiff.

I agree with the judgment of my learned brother, Karibi-Whyte, J.S.C. that the appeal should be allowed and it is hereby allowed. I abide by the orders contained in the aforesaid judgment.

UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Karibi-Whyte, J.S.C. and I entirely agree with it.

I desire only to add the following, it is pertinent to draw attention to the fact that in the Court of Appeal, the respondent herein who was the appellant, filed 3 grounds of appeal. Of these, the second ground reads as follows –

“(2)   The learned trial judge misdirected himself on the facts when he held that the plaintiff was entitled to judgment against the Defendant.

Particulars

There was no evidence that the teller alleged to be evidence of the payment was signed by a cashier of the Defendant bank.”

            Although arguments of both the parties to the appeal were heard by the lower court, neither the lead judgment (per Mohammed, J.C.A.) nor the concurring judgments (per Kazeem, J.C.A. (as he then was) and Kutigi, J.C.A.) adverted to the points canvassed. So that the judgment of the Court of Appeal was not in anyway based on the argument advanced on the ground.

Now in the appeal before us, the respondents have not filed a cross-appeal complaining against the failure of the Court of Appeal to consider their contention under the said ground. I am therefore unable to see the basis on which the issue of the proof of the payments made by the appellants to the respondents’ cashier can be a point that positively calls for our consideration. In any event, the finding of fact made at the trial by the learned trial judge on that score is as follows –

“It is abundantly clear that the monies were paid into the bank.”

               This finding was not set-aside by the Court of Appeal and we are not called upon by any of the parties to the appeal before us to reverse it. It is unassailable that the fact remains, as found by the trial court, that the appellants had paid to the respondents the sums claimed as money had and received.

It is for these and the reasons contained in the judgment of my learned brother. Karibi-Whyte. J.S.C. that I too will allow this appeal with N300.00 costs to the appellants. The judgment of the Court of Appeal, with the consequential order therein, is hereby set-aside and the judgment of Martin. J. is restored.

COKER, J.S.C. (Dissenting): I have had the advantage of reading in advance the draft of the lead majority judgment just delivered by my learned brother, Karibi-Whyte. J.S.C. and regret to dissent after a very careful consideration of all the

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issues raised in this appeal and at the trial and in the Court below. I have come to the decision that this appeal must fail and should be dismissed. In coming to this decision, it is necessary for me to put the issues and facts of the case in their right perspective before proceeding to the arguments of Counsel on the appeal.

This appeal is by the Plaintiffs in the High Court of Lagos State and the Respondents in the Court below. In the trial court, they claimed the sum of N9,750.00 being money had and received or for conversion of the said sum. Pleadings were exchanged and witnesses called by the two parties and at the conclusion of the hearing, the trial Court entered judgment in favour of the Plaintiffs for the amount claimed with costs. The defendants appealed to the (Federal) Court of Appeal on three grounds. The appeal was allowed on the 1st ground, and although the two other grounds were argued along with the 1st, the Court below considered it unnecessary to give any decisions on the two other grounds. The judgment of the trial court was set aside and the plaintiffs’ case was dismissed with costs.

The plaintiffs have now appealed to this court.

There are three grounds of appeal. It is convenient to reproduce them as they epitomize arguments of counsel for the appellants:

Grounds of Appeal:

1.
”A. The learned Justices of the Court of Appeal misdirected themselves in law when they concluded that the learned trial Judge “rested the whole judgment on the issue of negligence”.

Particulars:

(i)
the word “negligent” as used in the judgment of the learned trial Judge did not expressly or impliedly connote “negligence” as tort or legal terminology but was used merely as an English vocabulary in the sense of nonchallant”.

(ii)
the word “negligent”, in whatever sense it was used, occured only in the learned trial Judge’s “Observations” and not in the findings of the Judge.

(iii)
the learned Justices of the Court of appeal dwelled solely on the learned trial Judge’s “Observations” and failed to read the last paragraph of the judgment which contained the findings of the trial court and on what the findings were based expressly:

“On the strength of the above observations and on the totality of the evidence and Exhibits tendered, I am of the view that the plaintiff’s case is proved and judgment is entered in favour of the plaintiff as per his writ of summons with 5ch interest with effect from 22nd May, 1978 until judgment debt is liquidated”, (emphasis supplied by me).

2.”B
The learned Justices of the Court of Appeal erred in law when they failed to decide the appeal on the evidence on the printed record and exhibits tendered at the trial court.

Particulars of Error:

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The whole judgment of the learned Justices of the Court of Appeal was based solely and exclusively on the issue of negligence whereas negligence was not the issue between the parties but “money had and received by the defendants have wrongfully converted to their own use.”

In failing to address themselves to the evidence on the printed record and exhibits, and by dwelling extensively, solely and exclusively on “negligence” (which is not the issue between the parties) and in the process dismissed the plaintiff’s claim, a miscarriage of justice has occurred, and this miscarriage occurred principally because the learned Justices of the Conn of Appeal neglected their duty to reexamine the whole evidence, both oral and documentary, that was tendered at the Court of trial as well as examine the whole course of proceedings as complied in the record of appeal.

3.”C
The learned Justices of the Court of Appeal misdirected themselves in law’ w’hen they set aside the judgment of Martins J. in the suit No. LD/1218/1980 and entered an order for the dismissal of the suit.

Particulars

(1)
An appeal court which falls to decide the issue between the parties on the printed evidence and exhibits tendered but decides the appeal on technicality of law would be wrong to enter an order of dismissal, which operates by res judicata to bar the plaintiff/appellants from further redress. The order of the Court of Appeal therefore caused substantial injustice to the plaintiff/appellant.

(2)
if the teamed Justice of the Court of Appeal were right in saying in their judgment:

“if any evidence was entered suggesting that the appellants were negligent it will go to no issue, and it should be ignored”

they were wrong in failing to ignore the alleged offending evidence, expunge that bit and then decide the case on whatever remained of the admissible and relevant evidence.

(3)
A Court of Appeal, before entering an order fordismissal of a suit, must first satisfy itself that the plaintiff hadfailed to prove his claim at the trial court and that an order for dismissal was the correct and proper order which the trial court ought to have made

(4)
If the learned trial Judge was indeed wrong in basing his judgment on negligence (and the plaintiff/appellant does not so admit) it was a mistake of the judge and not that of the plaintiff/appellant or of his counsel. As the plaintiff/ appellant have no control on this act of the learned trial Judge, they were not to suffer the irreparable damage

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which an order for dismissal of the suit will cause (if allowed to remain on (Judicial Record) by operation of “Res Judicata”.

(5)
In the absence of any reference in the judgment of the Court of Appeal to the effect that the plaintiff had failed to prove their case, basing the judgment only and solely on alleged mistake of the trial Judge, and if the learned Justices of the Court of Appeal were right in doing so (and the plaintiff/appellants believe that their Lordships were wrong) the correct order they ought to have made was a re-trial.”

In his brief and oral argument under ground 1. Mr. Folarin Popoola, learned Counsel for appellants, contended that the issue of negligence was neither specifically pleaded nor was evidence given by either party in support of negligence. He submitted that the Court of Appeal was in error therefore to have reversed the judgment which, he argued, was based not only on the observations but on the totality of the evidence before the trial court. These observations are stated in the appellant’s brief, namely:

1.
“the defendants should have acted swiftly when they knew’ that their cashier stamp No. 5 was missing and could not be reached by an outsider than the officials of the bank and that it was the cashier No. 5 stamp that was used in carrying out this operation.”

2.
“It is impossible for anyone outside to have got hold of the stamp.

Evidence abound that cashier stamp No. 5 was missing although it was handed over to the cash officer when 1st D.W. was going on vacation leave. It would appear from the evidence above that the defendant bank was negligent.”

Learned counsel then argued that although the fact that the cashier stamp No. 5 was missing was not pleaded, it was the defendants themselves that proffered that evidence. Therefore, the defendant cannot complain. In support of the submission, he cited the cases of Soimga v. Anadien (1967) N.M.L.R. 77 and Abowaba v. Adesina 12 W.A.C.A.18. Counsel argued that the proper thing was for the court below’ to reject such inadmissible evidence of 2nd D.W.

Learned counsel then submitted that it was on the totality of evidence and observations on which the learned trial Judge gave his judgment in favour of the plaintiffs. He argued it was therefore wrong for the court below to consider only one of the reasons given by the trial court. He argued that “A reason given by a judge for his decision is not to be regarded as a mere obiter dictum merely because he has given another reason also.” In support of his submission. Counsel cited a number of cases including:

Jacobs v. L.C. (1950) A.E.L.R.7371.

Holman v. I.R. Commissions (1966) 2 A.E.L.R.661.

Robinson & Scott Silicons Ltd. (1962) 1 A.E.L.R.

Rogers v. Astlery (No.2) (1966) 1 A.E.L.R.937.

Rovers v. Longsdon (k967) 2 A.E.L.R.49.

Rayman v. Sonic (1967) 1 A.E.L.R.339.

Samuel Aliiglme v. Okwitegbunam Chine & Anon (1963) 1 All NLR.28 and

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As regards ground 2. learned counsel referred to the lead judgment of the court below and pointed out that only one of the three grounds of appeal was considered by the learned justice of appeal (Mohammed). He submitted that if he had considered the case on the whole evidence he would have found that: “(i) the issue between the parties was not negligence but “money had and received or wrongful conversion:

(ii)
that the evidence led by the plaintiff was on bow and by whom the monies were paid to defendant bank, and the events that followed after discovery of the discrepancy in the statement of account;

(iii)
that all facts in issue to found on “money had and received or wrongful conversion” were pleaded and evidence led on them and on nothing else;

(iv)
that it was the defendant bank that led or volunteered evidence from which the learned trial Judge, among other things, inferred negligence;

(v)
that quite apart from the inference of negligence, the learned trial Judge had abundance of evidence to ground his decision in favour of plaintiff.”

Arguing the third ground, Mr. Popoola pointed out that the Court below erred in making an order of dismissal of the Plaintiffs’ claim notwithstanding the overwhelming evidence in support of the judgment of the trial court.

He finally submitted:-

“(1)     “that the deposits were made by the plaintiff’s messenger to the defendant      bank”

(2)
“that the defendant bank received the deposits on 5 payment slips”

(3)
“that the impression of cashier stamp No. 5 on which the bank received the deposits were carefully examined by Police expert photographer and handwriting expert with the aid of Microscope and found “all the stamp impressions bear the same character. That is, they were produced from one stamp”

(4)
“that the plaintiffs have been deprived of the money;”

(5)
“that of the 2 possible suspects (that is. the plaintiff’s Christopher and officials of the defendant Bank) it was not the plaintiff’s Christopher that deprived the plaintiff of the money since Christopher had been tried (with full participation on the defendant bank who provided 2nd, 3rd and 4th Prosecution Witnesses) but was discharged and acquitted.”

He then submitted in his brief that the defendants bank could succeed in their defence only if they adduced additional evidence to prove –

“(1)    that the 1st D.W., who was using cashier stamp No. 5 before proceeding on leave, was the only cashier who could use cashier stamp No. 5 at the defendant branch bank; that is to say. Cashier Stamp No. 5 was specifically made for the 1st D.W.;

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(2)
that Cashier Stamp No.5 was under safe custody of the bank when the 1st D.W. was on leave and so could not be reached by unauthorised bank officials who could have used it to collect money on behalf of the bank;

(3)
that the initials of cashiers (and especially that of the only cashier No.5) of the defendant branch bank were registered with the customer/plaintiff’.

The Respondents in reply in their brief submitted that the questions for determination in this appeal are: –

1.
Whether the findings of Martins, J. was based entirely on negligence, which was not an issue at the trial.

2.
Whether the appellant satisfactorily establish its claim in respect of money had and received.

             It is convenient at this stage to state the issues and evidence before the trial court.

In the Statement of Claim, Plaintiffs pleaded inter alia;

“3.    The Plaintiffs maintained and maintain a current account No. 7043 at the Defendant’s said Central Lagos Branch at No. 97/105 Broad Street. Lagos.”

“4.     On various dates in May, 1978 the plaintiff brought (sic) its messenger one Christopher Onyeomani deposited various sums of money in cash with the Defendant to the credit of the Plaintiffs said account that is to say:

On 5/5/78                         Plaintiffs deposited                     N2,500.00

On 9/5/78                         “”                                                    1,250.00

On 12/5/78                       ” ”                                                    2,500.00

On 17/5/78                       ” ”                                                       500.00

On 22/5/78                       ” ”                                                    3,000.00

                                N9,750.00

       “These various deposits had been duly recorded on the Defendants’ tellers (paying-in slips) and their receipt by the Defendant bank duly acknowledged by the Defendant’s Cash Received Stamp impression. The said tellers (paying-in slips) are hereby pleaded and shall be founded upon at the trial”.

“5.      Sometime in June 1978 the Plaintiffs received from the Defendants a statement of the plaintiffs’ said current account. The plaintiffs then discovered that the deposits enumerated in paragraph 4 above had not been credited to their said current account. The statement dated 6th June. 1978 is pleaded.”

“7.    By a letter dated 14th June. 1978 the plaintiffs, reported the matter to the Assistant Inspector-General of Police Force C.I. D. Alagbon Close, Ikoyi and sought Police Assistance. This letter is hereby pleaded.”

“8.     By a letter dated 30th November, 1978 the Police C.I.D. in formed the Plaintiffs (a) that their former messenger Christopher Onyeomani had been arrested and charged under suit No. A/l/7/ 78 with stealing and conspiracy to steal and (b) that the cash

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Received Stamp impression on the said tellers (paying-in slips) belonged to the Defendants. This letter is pleaded and shall be relied upon at the trial.”

“9.      The Plaintiffs ‘former messenger who made the said five deposits on behalf of the Plaintiffs at the Defendants’ Lagos Central Branch was accordingly tried on the said two counts by the Chief Magistrate V. B. A. Famakinwa, Esq. sitting at Court Magistrate’s Court, Lagos. At the trial the prosecution called five witnesses namely. The General Manager of the Plaintiff who were the complainant company; the 3rd, 4th and 5th prosecution witnesses were bankers employees of the Defendant. In his judgment delivered on 13th August, 1978 the Chief Magistrate, u B. A. Famakinwa, Esq. discharged and acquitted the accused. The said judgment of V. B. A. Famakinwa, Esq. is pleaded and shall be founded upon at the trial.”?

“The Plaintiffs plead a letter from the Defendants’ Company Secretary and Legal Adviser addressed to the Counsellor, Economic Affairs. USSR Embassy. Lagos, dated 21st January. 1980 from the Plaintiffs’ Legal Adviser.”

The defence admitted that the Plaintiffs were their customers and operated the said current account No. 7043 at their Branch at 97/105 Broad Street. Lagos. They however pleaded:-

“4(i)   The Defendant denies that the plaintiff deposited to its credit a total of  N9.750.00 or any other sum as alleged in paragraph 4 of the statement of  claim or at all.

(ii)
The defendant further avers that the said cash received stamp impression is not the impression of the Defendant’s stamp as alleged or at all.

(iii)
The defendant denies the receipt or any other form of acknowledgment of any deposit by the plaintiff as alleged or at all.”

“5.      Save that the Defendant denies the deposits as alleged in paragraph 4 of the statement of claim, the Defendant admits paragraph 5 of the statement of claim.”

“11.     The defendant denies that it received or had the sum of N9.750.00 or any other sum as alleged in paragraph 11 of the statement of claim or at all.

(i)
The Defendant denies that it converted the sum of N9.750.00 or any other sum as alleged or at all.

(ii)
The Defendant denies each of the allegations contained in (2) and (3) of paragraph 11 of the statement of claim.”

The issue therefore before the trial court was whether the plaintiffs proved that the messenger. Christopher Onyeomani, deposited the various sums of money in cash with the defendant as pleaded in paragraph 4 of the statement of claim. It is pertinent to note that the Statement of Claim did not aver that any of the five disputed slips bore the initial of any of the defendant’s Cashiers or any initial of any person. In other words, the plaintiffs relied solely on the defendants’ stamp impression as proof of the deposit of the various sums to the bank. It was not the case of the plaintiffs that the initials over the stamp impression were those of any employee of the bank.

[1986] 3 .
Aeroflot v. U.B.A. Ltd
(Coker, J.S.C)
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In the last paragraph of the statement of claim, the plaintiffs pleaded and tendered in evidence a letter from the defendants’ Company Secretary and Legal Adviser addressed to the Councellor. Economic Affairs USSR Embassy. Lagos dated 21st January 1980. I consider it necessary to refer to the letter (exhibit F) at this stage. The relevant portion of it reads:

“1 refer to your letter of 26 November, 1979 addressed to the Manager, U.B.A. Lagos, and which concerned the account of Aeroflot, which is said not to reflect the N9,750.00 (nine thousand seven hundred and fifty naira) supposed to have been paid into it by an Aeroflot cashier between the 5th and 22nd of May, 1978.

This matter has caused us as much distress as it has caused you. It is always a matter of deep regret and distress to us that our customer should be defrauded in any way. Aeroflot has therefore all our sympathy for the loss. And if we had been satisfied that the money was actually paid to any of our cashiers, we would unhesitatingly have credited Aeroflot’s account with it and let the loss be on ourselves. But we do strongly believe, on the contrary, that the money was never received in our name by any of our cashiers ………….Your statement that the money “has been really received” by us was based on the fact that the cash-received stamp impressed on the teller was said to be ours, according to the police expert opinion. But, even assuming the correctness of the police opinion, you know that, in law as in the ordinary world of business, a stamp does not make a receipt. A receipt for money, being a written acknowledgment of a debt, has to be authenticated by the signature of the person giving it. otherwise it cannot legally bind him. I implore you to imagine what an intolerable burden would be cast upon a bank if every teller bearing its stamp, but without the signature of any of its cashiers or other officers duly authorised to receive deposits from customers, were to be binding on it as a receipt for any sum of money, however large stated on such teller. The bank would soon be forced into liquidation:

We would have expected that, when the fraud was discovered, you would immediately bring your cashier to our Branch to identify the cashier to whom he claimed to have paid the money. That would have assisted us in verifying whether the signature on the teller belonged to the cashier so identified. “

(The italics mine).

In addition to this letter and other documents, the plaintiffs called three witnesses to testify in proof of their case. There was no direct evidence besides the five disputed paying-in slips, to prove that Christopher paid the various sums to the bank. The finding of the trial judge that they were paid into the bank is not supported by any evidence whatsoever. The 1st P.W., Merkoushin Uladimir, was the general manager of the plaintiffs Company. He did not pay nor did he say he saw any of the sums paid into the bank. His evidence was:

“It was our former messenger Mr. Christopher that made the payments. Christopher had been making payments into U.B.A. A for the company before these payments in Exhibits B-B4.”

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Under cross-examination, the witness said:

“Christopher was in our employment for 5 years, he left in June 1978. It was Christopher who made the 5 payments in Exhibits BB4 ………. Christopher was charged to Magistrate Court and later discharged and acquitted. After the trial we obtained Certified True Copy of the judgment.”

The certified true copy of the judgment was admitted in evidence, as pleaded in paragraph 9 of the statement of claim and marked exhibit “B”. The learned Chief Magistrate in the concluding part of his judgment after discharging and acquitting the said Christopher Onyeagani, had this to say:

“I regret to say that the prosecution has not investigated the case properly and the prosecution has not conducted it properly. The result is that a doubt has arisen in the mind of the Court, and I give the benefit of the doubt in my mind to the accused person.”

At this juncture, it is pertinent to examine the question of burden of proof. On the pleadings, it is my respectful opinion that the burden of adducing evidence in proof of the averments in paragraphs 4 and 9 of the statement of claim was on the plaintiffs; the defence being complete denial of the fact that no payments were actually made to any of their cashiers. In an endeavour to discharge the onus on them the plaintiffs called evidence that:

(1)
They reported the matter to the police CID.

(2)
The messenger who allegedly paid the sums to the defendants was prosecuted for stealing and conspiracy and was found not E guilty, discharged and acquitted.

(3)
Two police experts expressed opinions that the “cashier 5 Received” stamp impression on the five paying-in slips (Exhibits BB4) belonged to the defendants.

(4)
The initials on the five disputed tellers were not the same as on the undisputed slips.

The “cashier 5 Received” stamp appearing on the five paying-in slips cannot in my view be regarded as estoppel against the defendants. It was for the Plaintiffs to lead evidence that the messenger, Christopher Onyeogani, paid the various sums of money to the bank or to any other person in the normal or general course of duty. It is my view that to discharge that onus, it is not enough to prove that the five paying-in slips bore the defendants “cashier 5 Received” stamp impressions. The plaintiffs must go a step further. They must in addition adduce evidence that the stamp impression in each case was affixed by a cashier of the bank or by some other employee duly authorised to do so and in the general course of his/her duty. The mere appearance of the “cashierS Received” stamp on the paying-in slips, cannot be proof that the messenger paid and that it was received by a cashier or an authorised employee of the bank in the course of his duty. Mere proof that the impressions of the “Cashier 5 Received” were from a genuine rubber stamp of the bank is not the same thing that it was affixed by an authorised employee of the defendants.

The point I am making as regards proof is well illustrated in African Continental Bank Ltd. vs. Chief Josephat Agbanyim (1960) VF.S.C. 18. The facts are similar to those in the present appeal. The respondent was a customer of the

[1986] 3 .
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appellant bank and kept a current account at its Calabar branch. A dispute arose as to two sums which the customer alleged he paid to the branch Manager, one Mr. Onwuteaka and which were not reflected in his statement of account.

The learned trial Judge accepted the customer’s evidence, and entered judgment in his favour. The appeal of the bank was dismissed. Giving the judgment of the Federal Supreme Court. Hubbard. Ag. F.J.. at page 20 said:-

“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 5p.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 appeared 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. “

The important points in that case are:

1.
The respondent who actually made the two payments gave direct or circumstantial evidence of what he did and from his own personal knowledge.

2.
The payments were made to the bank Manager, who was held to be a general agent of the bank. In other words, receiving of money from customers was within the scope of his employment – “he was their general agent in business, as the Manager of a bank is.”

3.
The payments were made in the bank premises, during the period of banking business.

4.
The paying-in slips were not held to be conclusive proof of payment but accepted in support of the direct testimony of the witness who paid to and received them from the Manager.

Since the payments are denied and excepting it is a matter which the court could take judicial notice, the general rule is that all the facts in issue or relevant to the issue in any given case must be proved by evidence. There cannot be any presumption of regularity in a case such as this that the stamp impressions were affixed by cashier of the bank in the absence of evidence of the person who actually paid or saw the payment of the various sums of money to the bank. The mere appearance of the stamp impressions of the defendants’ bank “cashier 5 Received” on each of the disputed paying-in slips” is not a notorious fact. See section 73

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Evidence Act and Commonwealth Shipping Representative v. P. & O. Branch Services (1923) A.C. 191. p. 212 judicial notice:

“involves that, at the stage when evidence of material facts can be properly received, certain facts may be deemed to be established, although not proved by sworn testimony, or by the production, out of the proper custody, of documents, which speak for themselves. Judicial notice refers to facts, which a judge can be called upon to receive and to act upon, either from his general knowledge of them, or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer.”

The Chief Magistrate’s judgment in the criminal case against the messenger is not proof that the messenger actually paid any of the alleged sums to any of the defendants’ employees in the oridnary or general course of the bank’s duty. The evidence of 1st P.W. and the paying-in slips (Exhibits BB4) which were given to him by Christopher are not proof of the averment or that he paid the monies into the defendants’ bank. P.W.l evidence is at best hearsay. Exhibits B-B4 are evidence of what Christopher gave to the witness. They are not proof of their contents. The actual payments by Christopher was not within 1st P.W. own personal knowledge. Neither were the paying-in slips evidence of what he saw done by Christopher. Neither is it proof that the persons who affixed the stamp were servants of the bank. Section 76 of the Evidence Act reads:

“76.     Oral evidence must, in all cases whatever, be direct –

(a)
if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw that fact;

(b)
if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard that fact;

(c)
if it refers to a fact which could be perceived by any other

sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner; …….”

The other pieces of evidence were given by the two police officers, 2nd and 3rd P.Ws. Patrick Nwanmana – 2nd p.W. was a police handwriting expert and photographer. His evidence was to the effect that the stamp impressions on the disputed five bank paying-in slips or tellers (exhibits B-B4) were compared with the “standard (undisputed) impressions on counterpart of other bank paying-in slips in the teller.

The learned trial judge recorded his evidence as follows:

“Witness identified Exhibit B to B4 as the Bank Teller book sent to him. The Stamp impressions on the teller leaves were referred to as question (d) and standard stamp impressions. Pages 3, 4, 5, 7, 8, 55, 58, 59, 60 and 61 were carefully examined with the aid of Microscope and I found all the stamp impressions to bear the same character. That is they were produced from one stamp. “

(pages 55,58.59.60 and 61 are exhibits B-B4, the disputed paying- in slips)

Further, he testified:

“I do (sic) examined the initial, the initial on pages 3, 4, 7, 8, were

[1986] 3 .
Aeroflot v. U.B.A. Ltd
(Coker, J.S.C)
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different from the initials on pages 55. 58. 59. 60 and 61 (i.e. on the disputed paying-in slips)

The 3rd P.W. Raufu Fashina. another handwriting analysist of the Force C.I.D. testified:

“On the 4/7/78 I received from the Officer in Charge Fraud Section of the Force C.I.D. a U.B.A. Ltd. Teller book for Aeroflot Soviet Airlines I was requested to examine and compare the initial and stamp impressions at pages 3, 4, 7, 28 and 30 with the initials and stamp impressions at pages 55, 58, 59, 60 and 61. I carried out microscopic examination and comparison between the initials and the stamp impression on the 29 of (sic) documents and I found features of insameness/unsameness) on the intitials and characteristic features of identity on the stamp impression on the two groups of documents. I later put up a report of my findings. I can identify the teller book if seen. Exhibit B to B4 identified by the witness. Report of the witness identified tendered, admitted and Marked Exhibit “J”. (The word in bracket mine).

In exhibit “J”. the witness (3rd RW.) expressed the opinion that –

(a)
the stamp impressions at pages 3, 4, 7, 8, 28 and 30 and those at pages 55, 58, 59, 60 and 61 are products on one and the same rubber stamp;

(b)
the initials on the stamp impressions at pages 3, 4, 7, 8, 28 and 30 are same but not the same with those on the impressions at pages 55, 58, 59, 60 and 61.” (That is the disputed paying-in slips) (Words in bracket mine)

The sum total of the evidence of these two witnesses was that while the stamp impressions on the disputed documents (Exhibits B-B4) were from the same stamp as those on the undisputed bank slips of the defendants’ bank; the initials over the stamp impressions are different. The question therefore is whether the evidence of these three plaintiffs witnesses and the documents (Exhibits B-B4), established the Plaintiff’s case against the defendants. I do not think so.

Evidence on behalf of the defendants was given by two of their employees.

D.W. 1 – Phillip Adekanmi Adewunmi in 1978 was the bank cashier, who used “cashier 5 Received” stamp until he proceeded on leave between 20/3/78 to 15th May 1978. During his absence on leave, it was not assigned to any other cashier. On return from leave he started using a different stamp, Cashier Stamp No. 10, because Cashier 5 stamp (which he was previously using) could no longer be found where it was kept. He testified as follows:

“On the arrival (at the bank) of a customer to safe (sic) money on current account, we collect the tellers we check that in the letter (teller) the account No. is written and the proper names of the customers are entered in the teller. The money is then collected and checked against the figure written in the teller. If they are in agreement the tellers are stamped and initialled. The stamping and initialing is evidence of receipt of money on behalf of the bank …………

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I was a receiving cashier and I received cash only at the time. I received the amount as stated in pages 3, 4, 7, 8, 28, 30 of the teller in which Exhibits B to B4 were contained. I knew that I received the amount through my initials and the same time I was on duty during the time. I was not the person who received the amount in page 55 at that time I was on leave and the initial on page 55 is not mine. I was not the person who received the amount in page 58 as that time I was on leave and the initial on the page is not mine. Likewise page 59. In respect of page 60. I was on duty but I was using cashier No. 10. The money written on that page was never received by me and the initial is not mine and likewise 61 ….. when the cashier is satisfied that everything is all right the teller is stamped after receiving the money. Cashier No. 10 is not specially made for me. Any staff appointed cashier as posted as cashier could be posted to Cashier No. 10. I became cashier No. 5 during the month of November 1977.” (The italics and words in bracket mine.)

The 2nd D.W.. Timothy Olusegun Akanni. was the Branch Accountant at 97/105 Broad Street, Lagos of the defendants bank. He testified that the cashiers of the branch were directly responsible to him, also the cash officers. He further testified that:

“Adewunmi was on leave between 23/3/78 and 15/5/78 in the year 1978. Adewunmi in 1978 as per our record was a receiving cashier and before his vacation leave he was cashier No. S. On his return from vacation leave I could not recall what Cashier Cage he was posted. As Cashier No. 5 he used Cashier stamp 5. Mr. Adewunmi should have taken back his job as cashier No. Son resumption of duty but unfortunately Cashier Stamp No. 5 was no where to be found in the bank and as such he could not take over as cashier No. 5. Any payment made by the customer of the Bank must be acknowledged and this acknowledgment is in the form of receipt stamp being issued to each receiving cashier. The stamp will be used by the cashier to stamp both the original and duplicate copies of the teller after the cashier has satisfied that the money paid in is correct. The cashier keeps the original of the teller and hands over the duplicate copy to the customer. The payment made by the customer is recorded on the Cashier paying slip. The cashier will initial both copies. This method is not peculiar to our bank done, it is the method used by all banks.”

Under cross-examination, the witness said:

“When a cashier goes on vacation leave, he is replaced by a reliefer. The reliefer is issued with another stamp. The stamp used by the cashier going on vacation leave is handed over to the cash officer. When Adewunmi 1st D.W. was going on vacation leave he handed over his cashier stamp to Cashier (sic) Officer. The cash officer cannot use the stamp he is not a cashier. “

The italics mine.

[1986] 3 .
Aeroflot v. U.B.A. Ltd
(Coker, J.S.C)
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In this case, the messenger who allegedly made the payments was not called as a witness and no person who had personal knowledge that he paid them into the bank was called to testify. There was no evidence that his whereabout was unknown. I am unable to find any presumption of fact or law which makes the mere appearance of the bank’s Cashier No. 5 stamp as proof of payment on the face of evidence of denial by the person (D.W.2) whose initials were expected to be on them. See section 99 Evidence Act. Jobi v. Oshinlaja (1963) 1 All N.L.R.

The two expert witnesses called by the plaintiffs agreed with D.W. 1 that the initials on exhibits B-B4 were different from the undisputed initials. There is therefore no evidence to support the finding of the trial judge when he stated:

“It is abundantly clear that the monies were paid into the bank, the defendant bank has not called any evidence in rebuttal to say that the monies were never received by the defendant or paid into the defendant bank. The evidence of the 1st p.w. that these monies were paid into the bank stood unchallenged. “

He had earlier observed and equally without any evidence in support:

      ‘”From the evidence before me the 1st P.W. according to him the sum of N9, 750.00 was paid to the defendant bank through their messenger one Christopher as shown in their writ of summons and statement of claim (See paragraph 4) the tellers Exhibit “B” to “B4 ” on which these payments were made were duly stamped with the defendant bank stamp which is cashier No. stamp and were also initialled. These money were paid into the bank by Christopher Onyeagani the said Christopher Onyeagani did not give evidence as he was not called. According to the 1st p. w. Christopher had resigned from the plaintiff company sometime during the month of June 1978 and his whereabout is not known. “

            I am however unable to find any where on the record where the witness said the whereabout of Christopher Onyeagani was not known. There was no evidence that any search was made for him or to locate his whereabout. There was no evidence that he was dead so as to dispense with his oral evidence as required by s.90 of the Evidence Act. Further the witness gave no evidence of his own knowledge that the monies were paid into the bank. The plaintiffs’ case as pleaded and evidence of P.W. was that the monies were paid to the bank through Christopher. The learned trial judge had earlier found:

“Evidence abound that cashier stamp No. 5 was missing although it was handed over to cash officer when 1st D.W. was going on vacation leave. It would appear from the evidence above that the defendant bank urn negligent. “

Later in his judgment he observed:

“The defendant has treated the missing cashier stamp No. 5 with great levity and they must face the consequence of such negligent act on their part.”

Still further, the learned trial judge found:

“On a serious note the Defendant bank should have acted swiftly on an issue of serious allegation like this and when they knew that their cashier stamp No. 5 was missing and could not be reached by

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any outsider than the officials of the bank and it was this cashier No. S stamp that was used in carrying out this operation. I am of the view that the defendant bank was negligent.”

Further still, the learned trial judge found:”

In the instance (sic) case the discrepancies were discovered by the 1st P.W. and the G.M. of the plaintiff’s company in his letters Exhibit C and C1 without any reply coming from the defendant bank. Can it not be said that defendant was negligent? My answer to this is in the positive. The plaintiff was not negligent in bringing this matter to the notice of the defendant.-‘

In another observation made by the trial judge which appears to have greatly influenced him was:”

Where a bank stamps a paying slip counterfoils, it bears the onus of showing that a different sum nm actually received from that acknowledged on the counterfoils. See M’Kenzie vs. British Linen Co. (1881) 6A.C. 82 H.L. particularly at p. 92 and the case of Jacobs vs. Marries (1902)l Ch. 8l6 at p. 830 831 C.A. The case of Xtopher giving evidence is not very much important with reference to above. the onus is still on the bank and it has not been shifted. See Doherty vs. Royal Bank of Scotland (1963) S.L.R. (nots) 43.”

The defendants appealed against the judgment on three grounds to the Court of Appeal. The grounds read:

“(1)   The learned trial judge erred in law when he said in his judgment that the defendant was negligent in the performance of its work and so was responsible for the loss of the money, the subject matter of the Claim.

PARTICULARS OF ERROR:

(i)
There was no plea of negligence in the statement of claim and consequently negligence was not an issue in the suit.

(ii)
The learned trial judge did not call upon any of the Counsel to address him on the issue of negligence before he decided the case.”

“(2)     The learned trial judge misdirected himself on the facts when he held that the plaintiff was entitled to judgment against the Defendant.

PARTICULARS:

There was no evidence that the teller alleged to (be) the evidence of the payment was signed by a cashier of the Defendant bank.”

“(3)           The judgment is against the weight of evidence.”

Learned Counsel for the defendants/appellants did not withdraw any of the three grounds. All the three grounds including 2 and 3 were fully argued before the Court of Appeal by Mr. Nweke, learned Counsel for the defendants/appellants.

I reproduce the note of the presiding justice of the arguments of Mr. Nweke on the two grounds before the Court below:

“On ground 2. refers to page 50 line 31, page 21(C) line where the P .W .2 testified about the examination on initials on the teller, submit that the initials on pages 3, 4, 7, 8 which were those of cashier

[1986] 3 .
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No. 5 stamp were different from those on pages 55, 58, 59, 60 and 61 – Exhibits B-B4 which are the controversial initials. There was also evidence that except the payments on pp. 60 and 61, cashier No. 5 was on leave and when he resumed, he was (used) stamp No. 10. There was also evidence that when cashier No. 5 was on leave, his stamp was not to be used by any other cashier and that his relief was given a different stamp. Refers to page 28 line 17 et seq. Refers to page 50 line 25 et seq and submit that the finding of learned trial judge in that passage is contrary to the evidence of RW. 2 and P.W. 3 at page 23 line Set seq. Refers also to page 49 lines 7 et seq. Submit that for the Respondent to succeed in this case, they must prove (not only) that the stamp impression was that of the Appellants but also that the initials thereon were those of the appellants cashier which they failed to do. Submit that there was no scruticle (scintilla) of evidence that any money was paid into the bank whereas the trial judge said that evidence abound that money was paid in. Submit that throughout, the judgment was against the weight of evidence. Urges the court to allow the appeal and set aside the judgment of the trial Court.”

Mr. Adebomi for the plaintiffs/respondents in court in reply, argued:

“In reply to the submission on negligence, submit that the judgment was not based on the question of negligence but on the strength and totality of the evidence before the court. Submit that the stamp of the appellant used on the tellers Exhibit B-B4 constitute the seal of the Bank and it is sufficient evidence as to the receipt of the amount paid into the bank. Submit that the trial judges reference to “negligence” can be considered as merely carelessness on the part of the Bank with respect to the way the cashier No. 5 stamp was kept which was later found missing. Urges the court to dismiss the appeal.”

(Italics mine)

Adebomi’s argument was directed only to the issue of negligence, which was raised in ground 1. He offered no argument in reply to grounds 2 and 3. These two grounds were never abandoned. But for reason given in the lead judgment of the court below, no decisions were given on any of them.

In the lead judgment, Mohammed, J.C.A., said:

“With the success of the first ground of appeal the whole judgment of the learned trial Judge could not be allowed to stand. The remaining two other grounds were not pressed for by the counsel for the appellants and in view of my finding above I do not consider it necessary to analyse them.'”

Since these two grounds were not abandoned the court below should have proceeded to consider the other two grounds of appeal, but it never did. The question now is whether the court below was right to have allowed the appeal and dismiss the plaintiffs’ claim?

In the relief sought by the plaintiff/appellant from this court, apart from the reversal of the decision of the lower court, include:

“(b)         Re-examination of the whole relevant and admissible evidence, both

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oral and documentary, that was (were) tendered at the court of trial as well as examine the whole course of proceedings as compiled in the record of appeal;”

In other words, the plaintiffs, who are the appellants in this Court have asked for a re-examination of the whole case on the relevant evidence on record. Section 22 of the Supreme Court Act No. 12 of I960 gives this Court full jurisdiction over the whole proceedings and power to make any order necessary for determining the real question in accordance with the powers of the trial court.

I have earlier stated that one of the three issues the appellants submitted for detennination is whether: –

“The judgment of the trial court was based on the totality of the evidence and exhibits tendered.”

I have also set out the evidence on which the appellants in their brief contend supports the judgment of the trial court. Similarly, I have observed that all the two other grounds were argued (including the ground on negligence) before the Court below but were not considered. This Court has persistently warned on the need for courts below to consider all relevant issues raised in the pleadings and in cases of appeal, all the grounds of appeal properly before the Court. For parties are entitled to the decisions of the Court on all issues raised and argued before it. save where any of such grounds was abandoned. In the instant appeal before the court below, all the three grounds were argued and decisions ought to have been given on all of them and not only on one.

The trial judge did not express any view concerning the credibility of any of the witnesses called by the parties. He seemed to have accepted them.

The two experts examined the initials over the stamps impressions conceded that the initials on the disputed documents were not made by the same person whose initials appeared on the undisputed documents.

There was no evidence given by any of the witnesses called by either the plaintiffs or the defendants, as to the person whose initials appeared on the disputed documents. The 1st D.W. Adewunmi, who was the cashier to whom the particular stamp was assigned denied his initials on them (exhibits B-B4). Thus there was no evidence to identify the person or relate the person(s) whose initials appeared on them as an employee of the defendants performing the duties of a cashier.

For it is not even sufficient for the plaintiffs to adduce evidence that the initials were those of a servants) of the defendants, it must be shown also that the particular person belonged to a class of persons like cashiers, for whose acts the bank would be answereable. In Morris v. C. W. Martin & Sons Ltd. (1966) I Q.B. 716 it was held that the act of the employee must be committed in the course of doing the class of acts which the Company has instructed him to do. thus applying Lloyd v. Grace. Smith & Co. (1912) AC.

716.

The principle of the bank’s responsibilities for the wrongful acts of their staff would depend upon whether the act can be said to be within the apparent scope of the servants authority. Even if it is accepted that the defendants’ genuine rubber stamp. “Cashier 5 Received” was used on the disputed documents (Exhibits B-B4) to hold the defendant liable on that account, the plaintiffs must prove that the stamp was affixed, in each ease, by an employee whose duty included the receiving of cash from customers. The authorities on the …

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