The plaintiff Bank, International Bank for West Africa Ltd. sued the Defendant Company Oguma Associated Company (Nig.) Ltd. in a Warri High Court in Bendel state. By its original writ of summons filed in May, 1978, the Plaintiff Bank claimed against the Defendant Company the sum of N1,55,695.46 (One Million, One Hundred and Fifty Five Thousand Six Hundred and Ninety Five Naira, Forty Six Kobo) being balance of money had and received by the Defendants for their use at their own request, by way of loan, overdraft, accommodation and or facilities from the Plaintiffs who are Bankers. Pursuant to an order of Court made by the learned trial Judge Agege, J. the Plaintiff bank was allowed to amend the claim against the Defendant Company to read the sum N1,542,294.32 and the sum of money was said to the be due from the Defendant Company to the Plaintiff bank as at 28th January, 1981 on the loan transactions between the plaintiff and the Defendant and which gave rise to the action which the former instituted against the latter in 1978. The order to amend was made in spite of the opposition of Counsel for the Defendant Company to the Application to amend.

There were amendments to the pleadings originally filed. At the trial the plaintiff Bank called four Witnesses to testify in its behalf. The Defendant Company offered no evidence at all. In the course of his evidence PW1 one Chamberlain Obibi, an Account Assistant Manager of the Plaintiff Bank at warri testified as follows:

So it is clear that Exh. G the four statements of account about which P W 1 spoke were admitted in evidence without any objection to their admissibility. The learned trial Judge in his judgment given in the case on 19th October, 1981 held as follows:

In the course of his judgment the learned trial Judge expunged from the proceedings in this case Exh G which, as I have just said had been earlier on in the case admitted in evidence. He did this because, according to him, exh G could only have been properly admitted in evidence under the provisions of Section 96(2)(e) of the Evidence act.

The learned trial Judge relying on Yassin vs. Barclays Bank D C O, 1968 NMLR 380 held that since none of the witnesses for the plaintiff bank said anything in evidence as to the conditions precedent for the admissibility of exh G as provided for in Section 96(2)(e) of the Act exh G was inadmissible and therefore was wrongfully admitted in evidence. So, as I have said above, the expunged the whole of exh G from the proceedings.

The court of appeal allowed the respondent’s appeal and entered judgment for it on all its claims but dismissed the appellant’s cross pleadings. It held that having regard to the state of the pleadings in the case, the defendant company had not, in its defence, properly controverted the averments of the respondent/Bank It also held that the evidence before the trial court, quite apart from the expunged documents, were enough to find for the respondent/Bank. It endorsed the judgment of the trial court expunging the document exh. G (bank entries).

The defendant company, being dissatisfied with the judgment, appealed to the supreme court.