CaseLaw
Ogundeji V. IBWA Ltd (1993) CLR 3 (E) (CA)
Brief
Facts
The suit arose because the first defendant who was requested by the first plaintiff to issue bank drafts for the said sum of N2,288.00 and N6,032.30k respectively in favour of Total Nig. Ltd. with which the first plaintiff had business relationship as a petrol and petroleum dealer did not do so but had rather utilised the said sum to offset a purported indebtedness of the second plaintiff which maintained an account with the first defendant at its Jebba branch where the second defendant was the branch manager.
The resume of the evidence adduced in support of the plaintiff's case was that the second plaintiff, a registered limited liability company has, at all material times to this suit a current account No. 36-000-090D with the first defendant at its Jebba branch.
The first plaintiff, who is the managing director and the sole signatory of the second plaintiff's company has no account with the first defendant and his dealing with Total Nig. Ltd was in his own name and not in the name of the second plaintiff.
From about July 1985 until 25-8-86, when the first plaintiff made payments with a view to buy bank drafts the cause of the present dispute, he was being supplied petrol and petroleum products by Total Nig. Ltd. on credit basis and he was paying the proceeds of sale to the account of Total Nig. Ltd. which in turn was paying him his commission for the sales made at the end of each month.
Precisely, on 22-8-86 which a Friday and 25-8-86 which was a Monday the first plaintiff paid the sum of N2,888.00 and N6,032.30k respectively into the account of Total Nig. Ltd. with the first defendant at its Jebba branch and the relevant bank tellers were received in evidence as Exhibit 2 and 3 respectively.
It turned out however that the first defendant refused to issue the bank draft plaintiff's indebtedness to the first defendant according to the first defendant's Assistant Manager, Mr. Jegede (1st D.W) who received the money as well as the bank tellers. (Exhibits 2 and 3) from the first plaintiff.
And in consequence of which the first plaintiff suffered a steady decline in business and which resulted in substantial loss of commission totalling the sum of N131,847.56l as particularised in his statement of claim.
The case presented by the defendants in their pleadings and as supported in evidence by their only witness Mr. Jegede an Assistant Manager is briefly this. The first plaintiff was the Managing Director and sole signatory of the second plaintiff, which at the material time, had an overdrawn business account of N13,819.32k with the first defendant and that it was not the first plaintiff himself but one of his attendants that came to pay the two sums of money in question on 22-8-86 and 25-8-86 respectively into the second plaintiff's overdrawn account was reduced to N4,899.00.02. There was never any instruction that the said sum of money be paid into the account of nor that the drafts be issued in favour of Total Nig. Ltd., which only opened an account with the first defendant at its Jebba branch on 8-9-86 as shown on Exhibit 9 and 13.
The first plaintiff has neither account nor any customer relationship with the first defendant which had no connection with Total Nig. Ltd at all material times to this suit.
It turned out however that the first defendant refused to issue the bank draft plaintiff's indebtedness to the first defendant according to the first defendant's Assistant Manager, Mr. Jegede (1st D.W) who received the money as well as the bank tellers. (Exhibits 2 and 3) from the first plaintiff.Prior and subsequent to the two lodgements in question into the second plaintiff's account, the first plaintiff was intimated of the second plaintiff's overdrawn account but did nothing even after repeated demands to make good the said account. Subsequently, the first defendant took action to recover the balance due on the first plaintiff's overdrawn account which then stood at N4,899.02k and judgment was thereafter entered in favour of the first defendant as per Exhibit 11.
The first defendant is not aware of any loss to the second plaintiff as the sums of money in question were duly credited to his account.
In practice any lodgement with the first defendant that is not specifically paid into any numbered account with the first defendant is usually transferred first into its provisional account before tracing the correct account into which the said lodgement is later paid as it was in the case of the first lodgement of N2,888.00k of 22-2-86 which was eventually paid into the second plaintiff's account.
The first defendant is not aware, at all material times, that the plaintiff has been paying money into the account of Total Nig. Ltd. at all material times to this suit.
Prior and subsequent to the two lodgements in question into the second plaintiff's account, the first plaintiff was intimated of the second plaintiff's overdrawn account but did nothing even after repeated demands to make good the said account. Subsequently, the first defendant took action to recover the balance due on the first plaintiff's overdrawn account which then stood at N4,899.02k and judgment was thereafter entered in favour of the first defendant as per Exhibit 11.
At second plaintiff's request, Exhibit 12 of 13-10-83, (a letter of reference) was caused to be written to Nigerian Merchant Bank Ltd. introducing the second plaintiff as a petrol dealer.
Dismissing the plaintiff's case in its entirety, the learned Chief Judge in a well considered judgment found that notwithstanding that both sides have been less than candid to the court in presenting their side of the case, the first plaintiff did in fact on 22-2-86 and 25-8-86 lodge with the first defendant a total sum of N8,920.30k to obtain bank drafts in favour of Total Nig. Ltd but which was instead used to offset the 2nd plaintiff's indebtedness with the 1st defendant. And also that although the weight of authorities has crystalised in the principle that the bank has no right to transfer money from one account to the other without prior notice to the customer (see Greenhalgh & Sons v. Union Bank of Manchester Ltd. (1924) 2 KB 153 nonetheless the 1st plaintiff must be held liable in the circumstances of this case for the indebtedness of the second plaintiff (of which he was aware) as the Managing Director and sole signatory of the second plaintiff, the court having accepted the evidence of the 1st D.W. that as at 22-8-86 and 25-8-86 Total Nig. Ltd. had no account with the 1st defendant at its Jebba branch.
Being dissatisfied with the judgment, the appellant appealed to the Court of Appeal. None of the issues formulated in the appellants brief touched on the third ground of appeal filed. The respondent however formulated an issue arising from the said ground of appeal.