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Law/Judiciary

How To Prove Money Paid Into Bank

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1.OKPOKO COMMUNITY BANK LTD.
2.PETER ONUEGBU
(Manager, Okpoko Community Bank Ltd.)
v.
DR.P.C.IGWE
COURT OF APPEAL
(ENUGU DIVISION)
CA/E/375120(
ABUBAKAR JEGAABDUL-KADIR, J.e.A. (Presided)
JOHN INYANG OKORO, J.C.A. (Read the Leading Judgment)
Issues:
1.whether or not the respondent discharged the burden of proof required of him to be entitled to judgment.
2.Whether the failure of the appellants to adduce viva voce evidence at trial automatically entitled the respondent to obtain judgment.
Facts:
The respondent, a medi
cal doctor, at the trial court sued the appellants, community bank operators and claimed amongst others: N2 ,986 ,83 8 .57k being the fixed deposit and amount accruing thereon as at 3st March, 2004; N166,857.65k being amount in respondent’s current account as at 3st March, 2004; interest at 5 per cent per annum on the said sum until judgment and interest at 4 per cent per annum until the judgment is satisfied.
Originally, the suit was brought under the undefended list but was later transferred to the general cause list. Both parties exchanged pleadings. The respondent alleged in his statement of claim that the 2nd appellant persuaded him to fix the sum of N2,160,810.00 with the lst appellant. That upon maturity, he demanded for the money including accrued interest but the appellants failed to pay him.
The appellants in their statement of defence averred that the alleged fixed deposit was cancelled and that it was merged with current account and that the respondent withdrew the money leaving a deficit account. The appellants counter-claimed against the respondent for the money in the deficit.
At the trial, the respondent testified and called one witness in proof of his case. The appellants did not testify and did not call any evidence. Rather, they relied on the case of the respondent. Counsel for both parties filed their written addresses.
At the conclusion of hearing, the trial court entered judgment for the respondent.
Dissatisfied with the stance of the trial court, the appellants filed notice of appeal.
Held (Unanimously dismissing the appeal):
1.On Ways of proving payment of money into bank –
The best way of proving payment of money into a bank account is by the production of a bank teller or an acknowledgment showing on the face of it that the bank received the payment. However, where money is deposited in a bank and a certificate is issued to the customer, that certificate, when produced, will suffice. In the instant case, the certificate of deposit was alleged to be with the appellants which they had not denied. (P.186,paras. E-F)
2.On Whether pleadings constitute evidence and effect of failure to give evidence in support of pleadings –
Pleadings cannot constitute evidence and a party, as in the instant case, who does not give evidence in support of his pleadings or in challenge of the evidence of the adverse party, is deemed to have accepted and rested his case on the facts adduced by his opponent notwithstanding his general traverse in the case. [Ifeta v. S.PD.CN. Ltd. (2006) 8 NWLR (Pt. 983) 585 referred to.] (P.181,paras. C-D)
3.On Whether pleadings constitute evidence and treatment of averments on pleadings not supported with evidence –
Pleadings do not constitute evidence. Therefore, where a pleading is not supported by evidence, oral or documentary, it is deemed by the court as having been abandoned. In this case, although the appellants filed a statement of defence, they failed to adduce evidence in support thereof. In the circumstance, the averments were deemed abandoned. [Yusufv. Oyetunde (1998) 12 NWLR (Pt. 579) 483; Omoboriowo v. Ajasin (1984) 1 SCNLR 108; Ezeanah v. Attah (2004) 7 NWLR (Pt. 873) 468 referred to.] (P.184,paras. F-D)
4.On Treatment of averments in pleadings not supported with evidence –
Averments in pleadings on which no evidence is adduced, are deemed to have been abandoned as mere averment without proof of facts pleaded does not constitute proof of such facts unless such facts are admitted. In the instance case, there was no evidence touching and concerning the status of the 2nd appellant. [U.B.N. PIc v. Ayodare & Sons (Nig.) Ltd. (2007) 13 NWLR (Pt. 1052) 567 referred to.] (P.181,paras.D-E)
5.On Treatment of unchallenged evidence –
Where evidence given by a party to any proceedings or by his witness is not challenged by the opposite side who had the opportunity to do so, it is always open to the court seized of the matter to act on such unchallenged evidence. Where a defendant offered no evidence whatsoever in his defence, the evidence before the court obviously goes one way with no other set of facts or evidence to weigh against it.
There is nothing in such a situation to be put on the other side of the imaginary scale of the balance, as against the evidence given by or on behalf of the plaintiff. The onus of proof in such a case is usually discharged on a minimal of proof. [Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410; Jiaza v. Bamgbose (1999) 7 NWLR (Pt.610) 182 referred to.] (Pp.183- 184, paras. G-C)
6.On Effect of failure of defendant to adduce evidence –
Where a defendant fails to adduce evidence to put on the other side of-the imaginary scale of justice, a minimum evidence adduced by plaintiff will suffice to prove his case. (P. 183, para . F)
7.On Effect of failure of defendant to adduce evidence
and resting his case on that of the plaintiff –
Where a defendant refuses to adduce evidence in his defence and rests his case on the evidence of the plaintiff, as was done in the instant case, then the trial court is entitled to find for the plaintiff based on his evidence. To make it more explicit, where a plaintiff adduces oral credible evidence which establishes his claim against the defendant in terms of the writ or statement of claim, and that evidence is not rebutted by the defence either by challenging the same under cross-examination or by controverting same in evidence, the plaintiff is entitled to judgment. The reason for saying so is that such attitude of the defendant is interpreted to mean that he has accepted or deemed to have accepted the pleadings and evidence of or the case of the plaintiff. The standard of proof in such circumstance is minimal. [Buraimoh v. Bamgbose (1989) 3 NWLR (Pt. 109) 352; Tsokwa Oil Marketing Co. (Nig.) Ltd. v. B.ON. Ltd. (2002) 11 NWLR (Pt. 777) 163; Okoebor v. Police Council (2003) 12 NWLR (Pt.834) 444 referred to.] (P. 184, paras. C – F)
8.On Effect where defendant rests his case on that of plaintiff –
Where a defendant rests his case on that of the plaintiff, such a stance is a legal strategy and not a mistake. The implication is that:
(a) the defendant is stating that the plaintiff has not made out any case for the defendant to respond to; or
(b) he admits the facts of the case as stated by the plaintiff; or
(c) he has a complete defence in answer to the plaintiff’s case.
In the instant case, from the grounds of appeal and the issues formulated for determination, the appellants herein relied on the first option, that the respondent failed to make out a case for them to defend. [Aguocha v. Aguocha (2005) 1 NWLR (Pt. 906) 165; Akanbi v. Alao (1989) 3 NWLR (Pt. 108) 118; N.E.P.A. v. Olagunju (2005) 3 NWLR (Pt. 913) 602 referred to.] (P.188, paras. D-G)
9.On Burden of proof on plaintiff where defendant fails to adduce evidence –
Where the defendant fails to adduce evidence to counter or challenge the evidence of the plaintiff, the burden of proof on the plaintiff is minimal.
In the instant case, the main evidence before the court was that the respondent deposited money in a fixed deposit account with the appellants. That the certificate of deposit was collected back by the 2nd appellant and that they failed to repay the money at maturity. The appellants failed and/or refused to produce the certificate of deposit or deny it. Secondly, the appellants failed and/or refused to say either that the respondent did not deposit such money or that the money had been repaid.
The appellants equally failed to admit or deny the account numbers which the respondents said he kept with the appellants. The respondent proved his case before the trial court and stated that he deposited the sum of N2,160.810.00 and that as at 31st March, 2004, the amount with agreed interest had risen to N2,986,857.57k. The respondent also stated that he had the sum of N166,857.65k in his current account with the appellants. There was enough evidence which the trial court relied upon to enter judgment for the respondent. (P. 189, paras. D-H).

L-R: Assistant Force Public Relation Officer, sp Seji Ezegam; Force Public Relation Officer, csp Frank Mba and Deputy Force Public Relation Officer, sp Abayomi Shogunle, addressing a  news conference on the arrest of alleged fake recruitment syndicate in Abuja, last Friday. Photo: NAN

L-R: Assistant Force Public Relation Officer, sp Seji Ezegam; Force Public Relation Officer, csp Frank Mba and Deputy Force Public Relation Officer, sp Abayomi Shogunle, addressing a news conference on the arrest of alleged fake recruitment syndicate in Abuja, last Friday. Photo: NAN

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Features

Judiciary As Last Hope Of The Common Man

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The judiciary is said to be the last hope of the common man. If there is no judiciary or where the judiciary is shut, the hope of the common man is dashed. If the saying is anything to go by, one is shocked that for nearly two months, the last bastion of hope of the masses was shut by striking workers, yet it has been business as usual. Both the government and the workers union are not bothered about the ugly situation.
Judiciary Staff Union of Nigeria (JUSUN) is on indefinite strike nationwide to protest the inability of both the federal and some state governments to grant financial autonomy to the judiciary. The independence of the judiciary is contained in Nigeria’s grundnorm, the Constitution of the Federal Republic of Nigeria 1999 as amended.  Just as the positions of President and Governors of states are creations of the constitution, so also is the independence of the judiciary.
The truth of the matter is that JUSUN does not need to go on strike before the two tiers of government can implement the financial autonomy of the judiciary. It is a constitutional provision and political office holders swore to implement the spirit and letters of the Constitution.
Indeed, the judiciary and legislature are supposed to be independent as provided in the Constitution. When the three arms of government are independent, separation of powers is assured. This is because it will prevent fusion of powers which leads to tyranny. Fusion of powers smacks of dictatorship. In many states of the federation, governors have become absolute rulers.
It is becoming common that some state governors find it easy to shut the judiciary in order to have their way when unfavourable conditions tend to persist in their states.
For eight months, Rt. Hon. ChibuikeAmaechi shut the judiciary following an indefinite strike embarked upon by JUSUN. The closure of the courts caused a lot of hardship for both practising lawyers and litigants. Some lawyers who could not make ends meet died as a result. Litigants suffered lack of access to justice.
The indefinite strike embarked upon by JUSUN to demand financial autonomy is commendable because of its insistence on propriety obviously intended to prevent state chief executives from ruling on their whims and caprices.
But pathetically, many governors are unwilling to allow an independent judiciary that they will no longer hoodwink or coerce to do their biddings.  The delay in implementing the autonomy is predicated on the fact that most of our leaders are bigger than the country’s institutions.
Hence, we have strong leaders and weak institutions. At the federal and state levels, the suppression of the country’s main institution has aided tyranny.
Consequently, the governors and even the president can afford to do anything unconstitutional and go scot-free with it.
The national and some state Houses of Assembly have become rubber stamps ready for the masters’ use anytime. Therefore, one hardly finds meaningful debates in the legislature except in states that have strong opposition. In the states, where all the members of the legislature come from the ruling party, meaningful debate is moonshine.
The fashionable term is “Carry go”. The term “Carry go” literally means treat as requested. There is obviously no alteration or modification. The application of “Carry go” has continued to worsen the state of our democracy. The governors or the president can afford to do anything he likes without any compunction. Consequently, the masses and indeed the electorate do not have a voice anymore. The voices of the electorate are lost in the legislators’ inefficiency and cowardice.
The country is worse for it. What we have in most states of the skewed Nigerian federation are monarchs, who brook no challenges. They rule howsoever they like, for themselves and their various families. They have goons all over their states whose duty it is to defend them. If not for the state of our nation where rust is ripeness, do the President and Governors have no choice in implementing the constitution?
Many state chief executives implement and execute projects that would facilitate corruption yet any project that would better the lot of the people is either treated with levity or left undone. The question that readily comes to the mind is: whose interest are the leaders working for? Is it for themselves or the populace?

 

By: Chidi Enyie

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Law/Judiciary

Elele OSPAC Seeks Govt’s Assistance

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Elele Security Planning and Advisory Committee has appealed to the state government to come to their aid.
The local vigilante often called ESPAC said the call became imperative following its key role in sustaining peace in the communities.
In a chat with newsmen in his office yesterday, the commander, Daniel Wosa disclosed the unbearable situation his men faced on daily basis without anything to take home.
Wosa said some of his men had threatened to quit the voluntary job since nobody appreciated them.
The commander expressed regret that ESPAC members had volunteered to sacrifice their lives for the society yet nobody appreciated them.
“Some struggle to feed their families. It is unfair …”
“We appeal to governor Nyesom Wike to consider us because of the key role we have been playing in Rivers state.
“Today communities,road users and business men can attest to our untiring effort since we came on board.”
“No more kidnapping, killing and other vices which threatened the peace of the land,” he noted.
“Boys under me who volunteered to sacrifice for the wellbeing of others need recognition,” he stated.
Wosa said there was no security challenge the group could not contend if only government could give them support.
He specifically commended the executive Chairman, Ikwerre Local Government Area, Hon Samuel Nwanosike for his assistance and said if not Ikwerre Council boss the situation would have degenerated.
Wosa said some time now he had been using his hard-earned money to appease his men.
Wosa said it was on record Elele OSPAC had never been found wanting in the cause of its duty and explained that the group worked in collaboration with the conventional police to achieve desired objective
Meanwhile,a youth leader in Ikwerre Local Government, Comrade Eleonu Chukwuka says Hon Samuel Nwanosike’ s achievement in security has given him the second term ticket.
Comrd Chukwuka said Ikwerre Council Boss had written his name in gold by surmounting the security situation in Ikwerre.
The youth leader while chatting with newsmen said the introduction of OSPAC by Nwanosike led to other infrastructural and human capital development and pointed out that peace was key to development.
It is a thing of joy that farmers can return to farm. Normal life has returned.

It is the greatest achievement which snowballed to what we are seeing today in Ikwerre.

Ikwerre people are proud of him and will back till eternity.

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Law/Judiciary

Legal Departments In LGAs And Justice Dispensation

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Lawyers at the Local Government (LG) Legal Department would supervise and undertake prosecu-torial activities in magistrate courts, and represent their respective local governments in area courts, Magistrates Courts, High Courts, among others.
They would be on hand to render necessary legal advisory services to their local governments.
They could be in charge of advising their LG Chairmen on legal issues relating to issuance of the Customary Right of Occupancy at the LG level, thereby playing roles similar to those being played by the ministries of Justice and Lands at the State level in the Statutory Right of Occupancy. Section 6 of the Land Use Act, 1978 provides: “It shall be lawful for a Local Government in respect of land not in an urban area. (a) to grant customary rights of occupancy to any person or organi-sation for the use of land in the Local Government areas for agricultural, residential and other purposes. (b) to grant customary right of occupancy to any person or organisation for the use of land for grazing purposes and such other purposes ancillary to agricultural purposes as may be customary in the local government area concerned”.
They could take steps to set up (citizens) ADR/Mediation centres at the LG level, as well as render other legal aid/advisory services aimed at helping the local community or to make justice more affordable and easily accessible by local inhabitants.
Establishing a legal department at the LG level will tremendously reduce the pressure of having all lawyers striving to settle down only in major cities, such as Lagos, Port Harcourt, Kano, Onitsha, Aba, Ibadan, Jos, Abuja, Enugu City, Uyo, Warri, Calabar, Kaduna City, etc; lawyers employed by the various local governments would have to relocate to the local council headquarters where they’d live and operate from, with their families.
Establishing a legal department at the LG Level would bring lawyers and legal services closer to the people at the grass-root; residents of local communities will no longer need/have to travel to the major cities in order to get the services of lawyers to draft their various agreements, contracts, or to render other legal services.
Lawyers in the LG Legal Departments will, apart from attending to the legal needs of the local government councils, assist in prosecution of some cases, especially in courts located within the local council areas. This will minimise involvement of law prosecutors in criminal prosecution. Lay police officers‘ and non-lawyers’ continued involvement in criminal prosecution in Nigeria, is partly responsible for the worsening cases of awaiting trial cases and prison congestion in the country.
This is because of their professional limitations in this area, so many of the so-called police prosecutors are not able to match or withstand the legal firework of professionally qualified lawyers who act as defence counsel in courts during criminal prosecutions; these lay police officers and non-lawyers hardly understand the intricacies of formal courtroom proceedings and trial procedure, and more often than not, have very little or no preparation prior to their court appearances.
It may therefore be seen that the clamour for extrication of lay policemen from criminal prosecution is primarily not targeted at creating more jobs for lawyers, but rather at leaving criminal prosecution in the hands of qualified personnel (lawyers) who alone understand the law and are well able to match the expertise of defence counsel in court, in order to ensure that justice was dispensed in good time and more effectively.
Gradually, from among these lawyers, who are LG legal officers, some magistrates or even judges are appointed, just as it is done at the state level.
Establishing a legal department at the LG level would provide huge job/employment opportunities for lawyers in Nigeria.
Imagine, if all the 774 local government areas in Nigeria could create and have legal departments, and each local government (depending on capacity) employs an average of 10-20 lawyers in its legal department, we’d have at least 7,740 to 15,480 lawyers or much more immediately gainfully employed at the local government level.
Establishing a legal department at the LG level would redress the existing inequity and unfairness at the local government level. The following departments already exist in all the LGAs in Nigeria: Education, Health, Agriculture, Finance, Information, and Works. It’s gross marginalisation against the legal profession that there’s not yet a legal department in all LGAs in Nigeria. This obvious anomaly, which has wreaked huge havoc, considering the undeniable importance of law and lawyers in society, needs to be be urgently corrected to provide the needed balance that would make lawyers more relevant to society and move society forward.
B) Stakeholders To Make This All-Important Project A Reality:
The Nigerian Bar Association (NBA) at both the National and Branch levels:  NBA has responsibility to set the ball rolling. Indeed, if the NBA does nothing,  nothing happens.
The Attorney-General of the Federation of Nigeria, considering that he is the  Chief Law officer of the Federation.
Attorneys-General of the various states in Nigeria.
The Chief Justice of Nigeria.
The President of the Court of Appeal.
The Chief Judge of the Federal High Court and the President of the National  Industrial Court of Nigeria.
The Chief Judge of the Federal capital High Court and the High Courts of the  various States in Nigeria.
The House of Assembly of the various States in Nigeria.
The Nigerian Governors‘ Forum and the Governors of the various States in  Nigeria.
The Body of Senior Advocates of Nigeria (BOSAN), the Egbe Amofin Lawyers,  the Body of Benchers (BOB), the Eastern Bar Forum (EBF), the Muslim Lawyers’ Association of Nigeria (MULAN), the Mid-West Bar Forum (MBF), the Christian Lawyers’Association of Nigeria (CLASFON), the National Association of Catholic Lawyers (NACL), etc.
C) Conclusion: What Does This Take As A First Step?
It starts with an amendment to the Local Government Law of each State, to create a legal department in the LGAs in the state.
This is long overdue. Provision of necessary logistics and support infrastructure would then follow.
This writer believes that there would be business enough for lawyers in Nigeria, only if the lawyers could, by themselves and working hand in hand with their Bar Associations, put their acts together and stand up to do something concrete and constructive for themselves and their profession.
Time for action is now; there is no time to wait or waste, because time will never be right. Barack Obama said, “the change we desire will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek.  A stitch in time saves nine.”
It would be recalled that lawyers under the employment of Local Government Authorities in Rivers state, penultimate week, demonstrated for full recognition and salary increment to match that of their counterparts in the employment of the State Government, while the Authorities are against such on the ground that they (lawyers), are first and foremost, not employed as lawyers by the authorities, thus, may be making an unlawful request.
Udemezue is of the Civil Litigation Department with the Nigeria Law School.

 

By: Sylvester Udemezue with reports from King Onunwor

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