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FEBRUARY 8, 1972

(SUIT LD/565/70)

3PLR/1972/87 (HC)



Bakare J



Bank and customer Action by customer for recovery of balance due on his credit -Denial of liability by bank-Bank premises damaged by fire and documents destroyed-Copies of branch documents regularly sent to bank headquarters-Failure of plaintiff to produce counterfoils of cheques to prove case-Counterfoils produced not helpful because of vital omissions-Onus on plaintiff.



Olorunnimbe for the plaintiff.

Okupe for the defendants.


BAKARE J.: The plaintiff’s claim against the defendants is for the sum of £10,167 18s. 6d. being a refund or payment over to the plaintiff by the defendants of money-standing to the credit of the plaintiff in the various accounts operated by‘ the plaintiff until November 1969 at the defendants’ bank.

The defendants counterclaim against the plaintiff for the sum of £5,188 12s. 3d. with interest at 4 per cent. from the date of judgment.


The common grounds between the parties are that the plaintiff was a customer of the Abonmagbe Bank Ltd., Mushin branch, where he operated a savings account No. 1512 and two current accounts in the names of Layiwola Ilesanmi and Oluwamagbagbemi & Co. The defendants as successors to Agbonmagbe Bank Ltd. have taken over the assets and liabilities of the said Agbonmagbe Bank Ltd. On November 19, 1969, the Mushin branch of the Agbonmagbe Bank Ltd. was closed down in consequence of a riot which took place at Mushin on the said day and in the course of which the bank was damaged by fire.


The plaintiff who supplies food-stuffs to the army on contract testified that he operated the three accounts between May and November 1969. In his savings account No. 1512 there is a credit balance in his favour of the sum of £30. It is his case that he paid into his Layiwola Ilesanmi current account during the period in question a total sum of £7,990 4s. 0d. and into his Oluwamagbagbemi & Co. account during the same period the total sum of £8,262. His total withdrawals from the Layiwola Ilesanmi account during the said period amounted to £2,170 8s. 0d. and from the Oluwamagbagbemi account he withdrew the total of £3,338 17s. 6d. making a grand total of £5,509 -5s. 6d. The credit balance in his three accounts amounts to £10,167 18s. 6d. the subject-matter of his claim which the defendants refused to pay despite several demands.


The defendants’ case is that the plaintiff’s Oluwamagbagbemi & Co. account was run in debit while his Layiwola Ilesanmi account was run in credit. The credit amount of £30 in the savings account is admitted. It is the practice of the bank and in the course of its business that each branch of the bank renders monthly to the head office, returns of credit and debit customers. The defendants’ second witness who was the Mushin branch manager at the time of the fire incident identified the returns of debit customers (exhibits “ L’ =” L3 “) and credit customers (exhibits N and N1) forwarded to the Head Office for October and September 1969 respectively.


The defendants’ first witness testified that each current account is numbered and a customer opening more than one current account got his numbers which he used when paying-in and withdrawing from his accounts. The current practice is to stamp the numbers on the tellers and cheques issued to customers.


The balance of the Oluwamagbagbemi & Co. account as at the end of October 1969 as shown by the returns exhibits L-L3 prepared by the first defendants’ witness was £4,821 9s. 0d. debit. Not knowing the number assigned to the plaintiff’s Layiwola Ilesanmi account it is difficult to know what the credit balance is from exhibits N and N1. All the books of the bank were destroyed in the fire which damaged the bank on the day of the riot.


The plaintiff stated that for the purpose of investigating his claim he left six books of cheque stumps or counterfoils and five books of tellers in the defendants’ head office for four months at the end of which only exhibits B-B4 and D-D2 were returned to him.


For the defence, it was stated that the plaintiff did not allow his documents to remain in the head office for more than 30 minutes before he collected them and before there was any chance to do any checking of them.


Whichever version is correct, I am satisfied on the evidence that no useful purpose would be served by the counterfoils of cheques of the plaintiff. Their retention in the head office of the bank for months or minutes would not resolve the differences between the claims of the parties.


The method of checking the balances of customers after the fire incident was described thus by the first defendants’ witness:


“ Payments in from November 1 to 18 and cheques for withdrawals issued from November 1 to 18 are checked and the balances drawn from the October 1969 balance shown on the returns.”


The plaintiff testified as follows:


“ I always stated on the cheques the accounts I was operating. This fact is not recorded in the counterfoils.”


The plaintiff also admitted that on two occasions at least he bought loose cheque leaves from the bank. All these original cheque leaves issued by the plaintiff together with all the bank’s books have been destroyed by fire. There is also evidence that several counterfoils were missing in the cheque books tendered by the plaintiff. The result is that the counterfoils of cheques brought by the plaintiff were in no way helpful to show to what extent his two current accounts were operated through withdrawals.


I have the evidence of the first defendants’ witness that customers operating two accounts are given their accounts numbers. The plaintiff dealt with the bank’s branch for the short period May to November 1969 before the fire disaster, yet he did not disclose the numbers of his accounts in any of the documents tendered by him and especially in the counterfoils of his cheques and also in his testimony.
The onus lay on the plaintiff to prove that he had credit balances in the two current accounts operated by him and the amounts of the said credit balances. I disagree with the plaintiff’s counsel that the onus shifted on the defendants to state what the credit balance was in the plaintiff’s favour in the Layiwola Ilesanmi account on the admission that the account was run in credit.


The plaintiff can only succeed on the strength of his own case and not on the weakness of the defendants’ case.


I have no hesitation in holding that the returns of overdraft customers’ exhibits L-L3 were made in the usual and ordinary course of the business of the bank and not for the purpose of this case.


In the result, the plaintiff’s claim is proved only to the extent of £30 standing as credit in his savings account. His claim to credit balances in his two current accounts has not been established.


The defendants claim that the plaintiff remained the bank’s customer up to and inclusive of July 31, 1970. The plaintiff admitted that his accounts with the bank were not closed and that he knew that a new branch was opened along the Agege Motor Road.


In the absence of any instruction on the part of the plaintiff to close his account the defendants’ claim based on the overdraft is in order.


The defendants’ counter-claim therefore succeeds less the sum of £30 credit to the plaintiff in his savings account.


Judgment is accordingly entered for the defendants against the plaintiff for the sum of £5,158 13s. 2d. with interest at 4 per cent. per annum from the date of the judgment until the whole is liquidated. Costs assessed at 100 guineas awarded to the defendants.


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