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  • Diamond Bank Ltd. vs. Partnership Investment Co. Ltd.
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  • 2003-04-28
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Diamond Bank Ltd. vs. Partnership Investment Co. Ltd.

DIAMOND BANK LIMITED

V

1.      PARTNERSHIP INVESTMENT COMPANY LIMITED

2.      GAMJI BANK LIMITED

COURT OF APPEAL

( LAGOS DIVISION )

GEORGE ADESOLA OGUNTADE, JCA ( Presided )

SULEIMAN GALADIMA, JCA

MUSA DATTIJO MUHAMMAD, JCA ( Read the Lead Judgment )

CA/L/246/2000

THURSDAY, 19TH DECEMBER, 2002

APPEAL - Appellant’s brief - Fresh issues raised therein - Whether the respondent needs leave of Court of Appeal to respond thereto under Order 6, rule 14(11) of the Court of Appeal Rules

APPEAL - Respondent in an appeal making a case for setting aside judgment of trial court - Duty to give notice where he desires to contend on appeal that the decision appealed against should be varied, either in any event or in the event of the appeal being allowed in whole or in part

BANKING - Managers cheques or bank drafts purchased - Oral and written request not to pay without confirmation - Breach of - Effect

NEGLIGENCE - How to plead and give particulars thereof under Order

17 , rule 5 of the High Court of Lagos State (Civil Procedure) Rules,

1994

NEGLIGENCE - How to plead and prove

PLEADINGS - Negligence - How to plead and give particulars thereof under Order 17, rule 5 of the High Court of Lagos State (Civil Procedure) Rules 1994

PLEADINGS - Negligence - How to plead and prove

Issues:

1.            Whether negligence was pleaded and proved.

2.            Whether interest was pleaded and proved in accordance with the law.

Facts:

The plaintiff/1st respondent sued the defendants (now appellant and 2nd respondent) claiming N6,250,000.00 and N11,000,000.00 respectively against the 1st defendant only, being monies negligently paid by it despite the plaintiff’s subsisting countermand and direct instruction not to pay until confirmation is given by the plaintiff. The plaintiff was a customer of the 1st defendant/appellant, and had purchased two managers cheques or bank drafts in the respective amounts in favour of two other companies. The managers cheques were purchased on the 28th December, 1994 but on the 29th December 1994, the plaintiff requested the 1st defendant orally and in writing not to pay the two bank drafts without the confirmation and clearance from the plaintiff. However, the 1 st defendant/appellant despite the said oral and written instructions, paid the bank drafts on presentation. The contention of the 1st defendant was that a bank draft is honoured on presentation, and the buyer of the drafts was not in a position to give further instruction regarding the payment of the cheques.

The contention of the 2nd defendant/2nd respondent was that it had properly discharged its duty as a collecting bank. The trial High Court found negligence proved against the 1st defendant and entered judgment for the plaintiff. Dissatisfied, the 1st defendant filed this appeal. At the hearing, the 2nd respondent, instead of supporting the judgment, contended that the appeal be allowed, thereby raising a secondary issue as to the propriety of such a position under Order 3, rule 14(1) of the Court of Appeal Rules.