ALHAJI ISIYAKU YAKUBU V. UNITED BANK FOR AFRICA PLC & MESSRS UME IBEH & ASSOCIATES (2011)

Background

Alhaji Isiyaku Yakubu, a customer of United Bank for Africa Plc, operated a current account with the bank and obtained an overdraft facility of N30,000 from an application for N80,000. As security, he deposited his Certificate of Occupancy No. YLG 000842 and executed a legal mortgage in favour of the bank in 1982. Several years later, the bank issued debit advices and account statements showing different alleged outstanding balances. The bank initially stated that the appellant owed N6,404.48, but subsequently corrected that figure to N36,920.08, attributing the earlier amount to a typographical error. The appellant disputed the calculations and maintained that he had fully repaid the overdraft. He repeatedly requested a properly detailed and accurate statement of account.

When the bank threatened to sell the mortgaged property, the appellant commenced suit No. ADSY/17/94 seeking declarations that no genuine debt remained, the release of his title documents, and damages for negligence. While that action was pending, persons allegedly acting for the bank entered the appellant’s premises at No. 21 Gimba Road, Jimeta-Yola, apparently in connection with the threatened sale or valuation of the property. The appellant instituted a second action, suit No. ADSY/43/95, claiming damages and injunctive relief for trespass. The two suits were consolidated for trial. The bank counterclaimed for N540,377.85, allegedly being the debit balance on the overdraft account.

The Adamawa State High Court dismissed the appellant’s claims and allowed the bank’s counterclaim. The appellant appealed to the Court of Appeal.

Issues

1. Whether copies of the appellant’s bank statements, admitted as exhibits Z13–Z73, satisfied the conditions for admissibility of secondary evidence of entries in a banker’s book under section 97(2)(e) of the Evidence Act.
2. Whether the bank discharged the burden of proving its counterclaim independently of the appellant’s claim.
3. Whether the trial court properly evaluated the evidence concerning negligent management of the appellant’s account.
4. Whether the trial court erred by treating the failure of the indebtedness claim as automatically defeating the separate trespass action merely because the suits had been consolidated.

Ratio Decidendi

The Court of Appeal held that computer-generated or photocopied bank statements are not absolutely inadmissible. However, before copies of entries from a banker’s book may be received under section 97(2)(e) of the Evidence Act, the tendering party must substantially establish four cumulative matters: that the original book was an ordinary book of the bank; that the entries were made in the usual course of business; that the book was in the bank’s custody and control; and that the copy had been personally examined against the original and found correct. The evidence of the bank’s witness did not satisfy the fourth requirement. The witness merely identified the documents by the bank’s name, the customer’s name and the account number. He did not testify that he had compared the copies with the original ledger entries or verified their correctness.

The court further held that where inadmissible evidence is admitted at trial, an appellate court may reject and expunge it, particularly where the evidence belongs to a class that is inadmissible unless statutory conditions are fulfilled. Although a party may be precluded from objecting on appeal to evidence that was conditionally admissible but admitted without objection, that principle did not save the bank’s documents in this case because the required foundation for admissibility was not established and the appellant had objected at trial.

Court Findings

Once exhibits Z13–Z73 were excluded, the bank was left without reliable documentary proof of the alleged indebtedness. The court found that the trial judge had substantially based the decision in suit No. ADSY/17/94 and the counterclaim on those documents. The counterclaim was an independent claim, and the bank bore the burden of proving it by credible evidence. The bank’s witness testified that the appellant owed N540,377.85 as at 12 June 1998, whereas the counterclaim pleaded that the same amount was owed as at 6 November 1998. The discrepancy was material. Evidence relating to a date different from the date pleaded could not establish the pleaded claim. Pleadings define the scope of evidence, and an averment unsupported by evidence goes to no issue.

The court also found that the trial judge failed properly to evaluate evidence concerning the bank’s administration of the account. Under cross-examination, the bank’s witness admitted several irregularities, including incomplete account statements, missing transactions, duplicate debits, and an unexplained debit of N1,250. The bank also acknowledged that the account should have been properly maintained and that some wrongful debits had occurred. These admissions supported the appellant’s allegation of negligence. The appellate court was therefore entitled to re-evaluate the evidence because the trial court’s assessment was inadequate and resulted in a perverse conclusion.

With respect to the second suit, the Court of Appeal emphasized that consolidation is principally intended to promote convenience, reduce costs and save judicial time. Consolidated suits retain their separate identities. Each claim must be considered and determined on its own pleadings, evidence and reliefs. The trial court therefore erred in dismissing the trespass claim merely because it had rejected the indebtedness claim.

The evidence established that persons acting at the bank’s instance entered the appellant’s premises at No. 21 Gimba Road. The mortgaged property covered by Certificate of Occupancy No. YLG 000842 was situated at Demsawo Ward, opposite Jimeta Stadium, and was not shown to be the same property as No. 21 Gimba Road. The respondents did not deny the entry; their explanation that the visitors went merely to deliver a letter was not adequately proved. The court applied the principle that the slightest unauthorized entry onto another person’s land constitutes trespass.

Conclusion

The appeal was allowed. The judgment of the Adamawa State High Court dismissing the appellant’s claims and granting the bank’s counterclaim was set aside. The counterclaim for N540,377.85 was dismissed. The appellant obtained declarations that the bank had failed to establish any genuine outstanding indebtedness and had wrongfully retained his title document. The bank was ordered to release Certificate of Occupancy No. YLG 000842 and thereby discharge the legal mortgage. The appellant was awarded N500,000 for negligence and a further N500,000 jointly and severally against the respondents for trespass. An injunction restrained the respondents, their servants and agents from further entering, valuing, alienating or interfering with the appellant’s premises at No. 21 Gimba Road and No. 4 Warwar Street, Jimeta-Yola. Costs of N50,000 were also awarded.

Significance

The decision confirms the evidential safeguards applicable to bank statements and computer print-outs under the former Evidence Act. It also reinforces that a counterclaim must be independently proved, that parties are bound by their pleadings, and that the civil burden of proof shifts as evidence develops. More broadly, the case provides an important procedural warning that consolidation does not merge separate causes of action and that a trial court must deliver distinct findings on every consolidated suit.