HELD:

The trial Judge was in error in non-suiting the plaintiffs because-

(a)     he did not call on both parties to address him on the desirability of non-suit before making the order;

(b)     since there is no provision for an order of non-suit in the High Court of Lagos State (Civil Procedure) Rules 1973, from which Order 45, r. 1 of the old Supreme Court (Civil Procedure) Rules hitherto applicable in the State has been omitted, it would appear that the power of the judges of the High Court of Lagos State to enter a non-suit has been taken away; and

(c)     even if the trial Judge had such a power, he did not exercise his discretion properly, for the plaintiffs knew that their claim was based on the statement of account and also knew, or ought to have known, right from the beginning, that, in order to succeed, they had to prove how the debit was arrived at; yet they only called one witness who knew nothing about the claim, thereby failing to prove their entitlement to the amount claimed.

Poyser v. Minors (1881) 7 Q.B.D. 329, 332.

Clack v. Arthur's Engineering Ltd. [1959] 1 Q.B. 211 217

Fox v. The Star Newspaper Co. Ltd. [1900] A.C. (H.L.) 19

Fletcher v. L. & N. W. RY. Co [1892] 1 Q.B. 122

Craig V. Craig (1966) 1 ALL. N.L.R. 173, 177

Olayioye v. Oso (1969) 1 ALL. N.L.R. 281, 284-285

Osayi v. Izozo (1969) 1 ALL. N.L.R. 155,157

Onwualu v. Osademe (1971) 1 ALL. N.L.R. 14, 17

Appeal allowed: order of non-suit set aside and plaintiffs' claim dismissed.

A.O. Orakwuai for the Appellant

E.O. Echetabu for the respondents.

Fatayi-Williams, J.S.C. (delivering judgment of the Court)-The plaintiffs, now respondents, are a commercial bank with their registered office in Lagos. The defendant, now appellant, is a customer of the plaintiffs and maintains a current account at the Martins Street Branch of the plaintiffs.

In the proceedings which they commenced in the High Court of Lagos State, the plaintiffs, as bankers, claimed against the defendant the sum of £67,883.5.3d being money lent by them to the defendant at interest at the defendant's request. The said sum represented the amount outstanding in the defendant's current account as debit balance. The plaintiffs also claimed interest at the rate of 9% from the date of the issue of the writ until judgment or until payment is made.

The claim was originally filed as "undefended" but the defendant, within the time prescribed in Order 3 rule 11 of the old Supreme Court (Civil Procedure) Rules, gave due notice of his intention to defend the action. Pursuant to this, pleadings were ordered and duly delivered.

Paragraphs 4,5,6,7,8 and 9 of the plaintiffs' statement of claim read:-

"4.     That at the defendant's request various letters of credit were opened between 1971-1972 by the plaintiff for the defendant's benefit for the purpose of cement trade in these stages to wit, viz:-

(a)     1st Letter of Credit-210,00 U.S.A. dollars equivalent to £71,428.11.5d

(b)     2nd Letter of Credit revolving four times to U.S.A. dollars amounting to U.S.A. dollars 105000 equivalent to £357,142.17.10d.

5.      That these Letters of Credit were valid for the operational use of the defendant for the said cement trade and expired on 31st day of March, 1972.

6.      That the actual amount utilised by the defendant from the said letter of credit is 224,700.00 U.S.A. dollars which is equivalent to £76,428.11.5d before the said Letters of Credit came to an end on the said 31st day of March, 1972.

7.      That on the arrival of the cement, custom duties, handling charges, bank charges and storage charges made the defendant's account come up to £143,313.13.0d (One hundred and forty three thousand three hundred and thirteen pounds thirteen shillings only).

8.      That after the sale of the cement the whole amount derived from the sale in favour of the defendant and which amount was credited to the said defendant was £75,717.19.0d (Seventy five thousand seven hundred and seventeen pounds nineteen shillings) thus leaving a debit balance of £67,883.5.3d (Sixty seven thousand eight hundred and eighty three pounds five shillings and three pence only) against the defendant.

9.      That the defendant's debit account balance after the completion of the said transaction now stands at £67,883.5.3d (Sixty seven thousand eight hundred and eighty three pounds five shillings and three pence only) and for which sum of money the defendant is still indebted to the plaintiff and has not repaid the said plaintiff despite several demands to do so."

The defendant denied all the above averments in paragraph 3 of his amended statement of defence and put the plaintiffs to the strict proof of the various allegations contained therein. He averred further in paragraph 4 thereof as follows:-

"4.     As to paragraphs 3,4,5 and 6 of the statement of claim, the defendant avers that only one Irrevocable Letter of Credit No. LA.72/71/HQ167.71 for 50,000 Metric tons of cement was opened by the plaintiff in favour of the defendant. The said Irrevocable Letter of Credit was to revolve four times which is for shipment of cement."

In addition, the defendant sought to set-off against the plaintiffs' claim the following amounts:-

(a)     £39,245.7.5d not credited into the defendant's account; and

(b)     £40,000 being the loss incurred by the plaintiffs in defraud of the defendant because the plaintiffs did not only sell the cement below market price but also did not conduct the sale in a business-like manner.

He also claimed against the plaintiffs by way of a counter-claim of £100,000 as special and general damages for breach of contract.

At the hearing, the plaintiffs called only one witness, one Arua Kahi Eke who worked in the advances section of the branch of the plaintiffs' bank at Martins Street, Lagos, where the defendant had an account. He testified that between January and March, 1972, the defendant had a transaction concerning an order for cement with the plaintiffs and that it was in pursuance of this transaction that irrevocable letters of credit were opened by the plaintiffs in favour of the defendant's suppliers. One of the letters of credit was produced and tendered as Ex. "A". When one of the consignments of the cement arrived, the defendant had no money to pay for the cement. The plaintiffs thereupon paid for the cement and also paid the customs duty and the Ports Authority Charges. They later sold the cement to recover the sum advanced in respect of the consignment. The witness then tendered the defendant's statement of account with the bank (Ex. C) in respect of which he testified as follows:-

"The defendant's balance on Exhibit C is what the defendant now owes. Demands have been made from the defendant company to pay the money. It has not been paid. We are claiming as per writ. We did not execute other contracts on defendant's behalf because there was no funds."

It is pertinent at this stage to point out that the statement of account (Ex. C) contained three signatures of officers of the plaintiffs. One signed as having prepared the statement, another as having checked it, and the third as having examined it. It is significant that none of the three testified for the plaintiffs.

When the plaintiffs' witness was cross-examined about the transaction which the plaintiffs had with the defendant and also about the statement of account (Ex. C) on which the claim was based, he replied as follows:-

"I have been over 10 years in the account department. I know about this transaction. I knew it from the records. I was not in the branch of the bank at the time of the transaction. I came to my present branch in 1972. The letter of credit Exhibit A is to revolve four times. The 1st consignment in Exhibit A arrived about January, 1972. It was for 10,700 metric tons. Exhibit A is to cover a total of 50,000 metric tons. There was no further arrival of any consignment after the first. I don't know that the letter of credit has been revoked. This is a debit note against the defendant. (Tendered no objection admitted marked Exhibit D). The bank arranged for clearance. Sale of the cement. Mr Atuora took part in the sale on behalf of the bank. Mr Akinola also assisted. The clearance was done for the bank by Mr Shasanya. I do not know the number of tons of cement sold altogether. The whole consignment of 10,700 tons was cleared by Mr Shasanya.

I don't know how much per bag or per ton the cement was sold. I do not know the procedure adopted for the sale of the cement. The cement was sold both in bulk at the wharf and at the Store. I don't know the total amount realised by the bank in the sale of the cement. I don't know when the sale started, the ship arrived around January, 1972. I don't know how long the sale took. Ex. C is a correct amount. We issued some cheques to cover the debit side. My name is not in Ex. C."

When pressed for more details about the transaction, the witness testified further as follows:-

"I don't remember how much was spent on custom duties, storage or landing charges. I don't know the cement was stored. The consignment arrived with a bill of lading. The bill of lading is in our file. I know that the bank asked the defendant to look for customers for the cement. There was a letter to this effect."

The witness then tendered the letter as exhibit F. Another letter, shown to him by learned Counsel for the defendant, was also tendered and admitted as exhibit G. The contents of the letter exhibit F dated 17th February, 1972, read-

The Manager,

African Continental Bank Ltd., Apapa.

Dear Sir,

10,700 tons of Portland Cement per SS MINOUTSI-SUPPLIERS TRADING COMPANY-MANAGING DIRECTOR

MR. ANYAKWO

The Managing Director of Suppliers Trading Company, Mr Anyakwo, to whom the above consignment was shipped would be introducing buyers for the cement and you may give them Delivery Notes to collect from Mr Shasanya, West Coast Merchants, who are clearing on our behalf after you have received the payment indicating clearly the quantity paid for and the price-10/6d per bag ex-wharf, and 11/9d/12/- ex-store. The proceeds should be transferred to our Martins Street Branch for credit to a special account which has been opened for that purpose.

Yours faithfully, African Continental Bank Ltd.

(Sigd.) C.E. Anosike for; Chief Accountant.

CC: Manager, Martins Street Branch."

The second letter (Ex. G) dated 30th May, 1972, and written by the defendant to the plaintiffs protesting about the sale of the cement, also reads:-

"The Asst. General Manager,

A.C.B. (Nig.) Ltd.,

Headquarters,

148, Yakubu Gowon Street,

Lagos.

(Attention: Mr Ofili)

Dear Sir,

Proceeds of Cement Sold-Ex SS MINOUTSI

We are constrained to bring to your notice the discrepancies and irregularities discovered in accounting for sales proceeds of cement-Ex SS MINOUTSI which belong to our Company-Suppliers Trading Company.

The amount of £75,717.10.0d credited to our Account No. 9258 at No. 27/29, Martins Street Branch fell far short of the actual total proceeds realised from the sales of cement, because of the following facts:-

(i) The proceeds of sales ex-wharf, total quantity of 15,400 bags at the value of £630.13.0d was not credited to our Account. This amount short paid was confirmed by Mr Akinola-a bank official at Martins Street Branch-who also can produce his documents.

(ii) The quantity of bags of cement sold direct to Messrs OLD MAC of No. 19, Nnamdi Azikiwe Street, Lagos, valued £3,981.5.0d was not credited to the Account of our Company.

(iii) The proceeds of the quantity of cement supposed to have been sold ex-MINOUTSI, but physically collected from our Apapa Store to meet MINOUTSI commitments was not credited to our Account. The authority to collect these cement from our stock came direct from your Head Office.

(iv) On paper, a loss of 4,511 bags of cement ex-MINOUTSI was declared. This in actual fact was not a physical loss. This quality was reported by Mr Akinola in his report to Head Office that 4,511 bags were taken over by the West Coast on Mr Akinola leaving the wharf, but when West Coast was making his report, he said 4,511 bags of cement were lost and it was covered by a fake certificate.

(v) Bank Rate: During the purchase of this cement, there was a reduction in exchange rate and this exchanged rate worked out to £3,401.11.5d in our favour whereas a sum of £1,576.9.5d was credited to our Account, Ref. ACB Martins Street, C/N on Account 9258 dated 23rd May, 1972. We hope you will kindly assist with a view to rectifying the above irregularities.

Statement of Account

Several efforts have been made to get statement of accounts showing the full transaction of the sales of cement ex-SS MINOUTSI, none of these efforts was successful up till now. Instead, we continue to receive several debit notes which we find difficult to analyse. We shall be grateful if you will kindly use your good offices to let us have a full Statement of our Account for our kind perusal, which will certainly enable us to know our position.

Finally, we understand a sum of £143,513.13.0d was put in our Account as debit arising from transaction of sales of cement-ex-SS MINOUTSI whilst £75,717.19.0d was credited, leaving an overall debit of £67,598. By any stretch of imagination, we find it difficult to reconcile this overall debit of £143,313.13.0d as it is highly inflated: with the same vein we equally disagree with the credit of £75,717.15.0d passed to our Account as it is out of proportion for aforementioned reasons. Therefore, it now appears to us that adequate answers to the above questions are the only remedy.

We refer to our letter STC/1-dated 24th April 1972 and hope you will favour us with good consideration as we are suffering financially to pay all our commitments.

Yours faithfully, For: Suppliers Trading Co.

(Sgd.) J.O. Anyakwo, Managing Director

CC:    (1)     Manager, ACB Martins Street, Lagos.

(2)     Asst. Chief Accountant (Mr Anosike), ACB Headquarters, 148, Yakubu Gowon Street, Lagos."

The witness then testified finally as follows:-

"I don't know if the defendant's account was credited for the sales irregularities contained in Exhibit G. Defendant offered to sell the cement at a loss of over £10,000 and the Bank refused. I don't know how much loss the plaintiff suffered when it sold the cement. A Suspense Account was kept in the bank for the sale of the cement.

The statement of account for the Suspense Account is not prepared. I don't know where the tellers in respect of payment for the sales are. They should be in the bank. Thirteen tellers for payment tendered no objection admitted, marked H-H12. I took no part in the sales. Exhibit B was prepared by the bank for our office use."

As we have said earlier, no other witness testified for the plaintiffs.

The defendant testified in his defence. His evidence may be summarised as follows: In 1972, the plaintiffs who are his bankers opened the letter of credit (Ex. A) for him in respect of a consignment of 10,700 tons of cement expected around 11th January, 1972. It is dated 24th October, 1971. The bill of lading was sent direct to the plaintiffs. He then testified about the sale of the cement by the plaintiffs as follows:-

"The bank sold the consignment without informing me. My attempts to sell by myself was turned down by my bankers. The bank cleared the consignment through one Mr Shasanya ...... This is my first time of seeing exhibit C. There were irregularities in the sale from the wharf. The sales made by Old Mac were not taken into account. Payment from this was made at the Martins Street Branch. The sales took place at the wharf, Martins Street, and at the store. The sale started in February, 1972 but I do not know for how long it took. I wrote Exhibit G to the bank. I am not indebted to the bank in the sum claimed or any sum

I have never been told what was actually paid in each of the items for customs duties, landing, etc."

It is indeed strange that the defendant was not cross-examined about the allegations made by him in his examination-in-chief. Instead, he was only asked a few questions to which he gave the following answers:-

"I instructed my solicitor. I was served with a writ of summons. I do not remember if the statement of account was attached to it. I wrote Exhibit G after the sale of the cement has been completed by the bank. I was not in a position to clear the goods when they arrived."

In his address before the learned trial Judge, learned Counsel for the plaintiffs stated that the plaintiffs would be relying on their pleadings and that the statement of account (Ex. C) is indicative of the account of the defendant. He then asked the court to "adopt" exhibit G and give them judgment for the account claimed.

In a reserved judgment, the learned trial Judge dismissed the defendant's counter-claim. He, however, made no finding on the set-off also pleaded by the defendant. As to the plaintiffs' claim, the learned trial Judge observed as follows:-

"Exhibit C appears to be the pivot of the plaintiffs' claim, and although I have admitted it in evidence by reason of the testimony of the 1st plaintiffs' witness saying, though not without considerable difficulty, that he examined it.

In considering the weight, credibility and sufficiency of the evidence, I, sitting as a judge and jury, have examined the circumstances of the evidence and have come to the conclusion that the 1st plaintiff lied to the court when he gave the forced answer that he examined exhibit C.

It is my finding that he never examined the contents of exhibit C as to its correctness. Exhibit C therefore cannot be said to represent a reliable account of the transaction between the bank and the defendant.

It is clear that there are on the face of Exhibit C signatures of officials of the bank who would be deemed to have checked and examined the said account. What the court cannot understand is the failure of the plaintiffs' counsel to call such witnesses."

He then non-suited the plaintiffs after observed finally as follows:-

"There is a large sum of money involved, but for the fact that it is apparent on the available evidence that there is the possibility of injustice being done to the plaintiffs' cause, I would have had no hesitation in dismissing this claim."

The defendant, being dissatisfied with this order of non-suit, has appealed to this Court against the judgment. Three grounds of appeal were argued by learned Counsel for the defendant/appellant but the only ground which merits any serious consideration reads:-

"The learned trial Judge erred in law in non-suiting the plaintiffs' claim instead of dismissing it, since the case was fought on its merit and the plaintiffs failed to prove its case as found by the learned trial Judge."

Shortly put, the complaints of learned Counsel for the defendant/appellant are these. Firstly, none of the parties was invited to address the court before the order of non-suit was made. The learned trial Judge merely decided of his own volition to order a non-suit. Secondly, as the plaintiffs/respondents' claim was based on the averments in their pleadings, once the learned trial Judge had come to the conclusion that no case had been made out by the plaintiffs/respondents, the only order which he ought to have made in the interest of justice to both sides is to dismiss the claim in its entirety.

Learned Counsel for the plaintiffs/respondents, in his reply, conceded that their claim was based on the statement of account (Ex. C). He also conceded that he could not rely on exhibit C as "an account stated" because the defendant/appellant neither signed it nor did he signify that the entries therein are correct. Learned Counsel, nevertheless, submitted that the order of non-suit was appropriate because the plaintiffs/respondents intended to call some vital witnesses from the bank later. He admitted, however, that these vital witnesses were available when proceedings where commenced, but went on to explain that thereafter there were allegations against some of the managers of the bank and that as a result the appointments of eighteen of the managers were terminated for inefficiency.

We think there is merit in the submission of learned Counsel for the defendant/appellant. The nature and effect of a non-suit at common law was considered in Poyser v. Minors (1881) 7 Q.B.D. 329 where Lush, L.J. observed at p.332 as follows:-

"A non-suit at common law was nothing more than a declaration by the court that the plaintiff had made default in appearing at the trial to prosecute his suit. The entry on the postes was that 'the said A.B., being solemnly called comes not, nor does he further prosecute his suit against the C.D.' It decided nothing as regards the matters in dispute, but merely got rid of the pending action, leaving the plaintiff at liberty to begin de novo, and this he might have done either in the same or different court, subject only to having the proceedings stayed till he had paid the costs taxed against him on the non-suit."

This appears to be the position until the enactment of the Judicature Act of 1873. That Act, according to Wilmer L.J. in Clack v. Arthur's Engineering Ltd (1959) 2 Q.B. 211 at p.217, contained a provision whereby, in the High Court, a judgment of non-suit became a bar to subsequent proceedings in the same way as judgment for the defendant would be. Thus, in Fox v. The Star Newspaper Company Ltd. (1990) A.C. (H.L.) 19 it was held that a plaintiff cannot now elect to be non-suited. If he offers no evidence at the trial the defendant is entitled to a verdict. As the Earl of Halsbury L.C. has put it at page 20 of his decision in that case-

"Our whole system has been changed, and I think the reason why the word 'non-suit' itself is not now to be found in the rules is that it was determined that the power of the plaintiff at the common law to claim a non-suit, or the plaintiff in equity to dismiss his bill at his own option, should no longer be permitted, and it is probable that the word 'discontinuance' was supposed to apply to both forms of procedure both at common law and in equity. Accordingly, by Order 26 rule 1, the only mode by which a plaintiff can submit to defeat is under that Order, unless he allows the proceedings to go on until the verdict is recorded against him.

The word 'discontinuance' no doubt had, under a former system, a more limited application, and the old systems of non-suit is manifestly no longer capable of being reconciled with the new procedure either in form or substance. The substance is that when it once comes to court, and when the plaintiff offers no support to his action, there must be verdict for the defendant."

(Italics are ours).

The above situation persisted, so far as the High Court was concerned, until 1883 when the Rules of the Supreme Court came into force. These Rules also contained no provisions whatever for a non-suit, and since that date a non-suit in its strict sense has found no place in the procedure of the High Court of Justice in England. Occasionally, the word has been used loosely in the High Court, but all that has been meant has been that the defendant had no case to answer; (See, for example, Fletcher v. London and North Western Railway Co. (1892) 1 Q.B. 122).

The position in the County Court in England has been somewhat different, for there, the power to non-suit has been specially preserved first by section 88 of the County Courts Act of 1888 and later by Order 23 rule 3 of the County Court Rules, 1936. (See page 216 of the decision in Clack v. Arthur's Engineering Ltd. (supra)).

Until the new High Court of Lagos State (Civil Procedure) Rules, 1973 came into force on 1st September, 1973, the position in the High Court of Lagos State was not unlike that of the County Court in England. In the old Supreme Court (Civil Procedure) Rules which was in force in the High Court of Lagos State until the new Rules came into force, it is provided in Order 45 rule 1 therein as follows:-

"The Court may in any suit without the consent of the parties, non-suit the plaintiff where satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the court."

Since there is no provision in the new High Court of Lagos State (Civil Procedure) Rules for an order of non-suit because the above rule has been deleted from the new Rules, it would appear that the power of the judges of the High Court of Lagos State to non-suit a plaintiff has been taken away. They are now in the same position as a judge of the High Court of Justice in England. As in the English Rules, the power to non-suit a plaintiff has now been replaced by Order 23, rules 1 and 4 of the new Rules which provide only for the discontinuance or withdrawal of the whole or part of an action commenced in the High Court under certain circumstances. The provisions of the two rules read:-

"Order 23-Discontinuance

1.      The plaintiff may, at any time before receipt of the defendant's defence, or after the receipt thereof before taking any other proceeding in the action (save any interlocutory application) by notice in writing duly filed and served, wholly discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay such defendant's costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn. Such costs shall be taxed, and such discontinuance or withdrawal as the case may be, shall not be a defence to any subsequent action. Save as in this Rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the Court of a Judge in Chambers, but the Court or a Judge in Chambers may, before, or at or after the hearing or trial, upon such terms as to costs and as to any other action, and otherwise as may be just, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out. The Court or a Judge in Chambers may in like manner, and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his alleged grounds of defence or counterclaim to be withdrawn or struck out, but it shall not be competent to a defendant to withdraw his defence, or any part thereof, without such leave.

4.      If any subsequent action shall be brought before payment of the costs of a discontinued action, for the same, or substantially the same, cause of action, the Court or a Judge in Chambers may if they or he think fit, order a stay of such subsequent action until such costs shall have been paid."

Incidentally, these two rules are in pari materia with Order 26, rules 1 and 4 of English Rules of the Supreme Court of 1963. Paragraph 2 of the footnotes to the said Order 26 confirms our view that the High Court now has no power to order a non-suit.

For the above reasons, we think that the learned trial Judge, at the time he non-suited the plaintiffs on 31st July, 1974, had no power to do so. In any case, even if he had the power, it is our view that it is still a matter for his discretion whether he should non-suit the plaintiff or give judgment for the defendant. We are also of the view that he failed to exercise his discretion judicially, having regard to all the circumstances of the case, for the following reasons.