- Flynote
- CL|Counterfeit Currency|Bank Deposit
(Delivered By CHINWE EUGENIA IYIZOBA, JCA)
This is an appeal against the Judgment of O.A. Dabiri J. of the High Court of Lagos State, sitting at Ikeja judicial division delivered on the 2nd day of December, 2013 granting some of the reliefs claimed by the Respondent. The Respondent as Claimant at the lower court by a writ of summons dated the 7th day of November, 2009 and filed on the 8th day of
December, 2009 claimed against the Appellant as Defendant the following reliefs:
I. An Order of this honorable Court directing the defendant to re-credit the claimant's account NO 0332080297559001, with the sum of US $51,700.00 being the sum of money the claimant lodged into the said Account between 23rd day and 30th day of September, 2009, which said money was reversed, withdrawn and debited from the claimant account without his consent by the defendant.
II. An Order of this honorable court directing the defendant to pay interest at the rate of 9% on the money.
III. (a) The sum of US$500,000.00 or its equivalent as damages for breach of trust, contract and breach of duty of care.
(b) The sum of US$500,000.00 or its equivalent as exemplary damages and ancillary relief.
(c) The sum of US$500,000.00 or its equivalent for defaming, tainting and painting the claimant as a common criminal.
The Respondent in his statement of claim averred that he is an international business man who resides partly in Canada and U.S.A; that he is a customer of the Appellant Bank and operates a current account with the Appellant's branch at Sango Otta, in Ogun State. The Respondent claimed he saves his money in foreign currency particularly in U.S dollar with the Appellant bank. He claimed to have lodged a total of U.S$51,700.00 between the 23rd day of September, 2013 and 30th September of the same month at the Ogba Ijaiye, Lagos branch of the appellant and that at every point of deposit one Mr. Kenneth bike, a staff of the Appellant bank duly verified and authenticated the currency before issuing him with the tellers. The Respondent claimed that few days after the lodgement, the Respondent was informed by the Bank that after verification at the- head office of the Appellant bank it was discovered that the U.S. Dollars were fake and that the appellant should come to retrieve them, thereafter the Bank reversed the credit. The Respondent refuted the Banks claim and wrote several letters demanding that his account be credited back with the said sum. When the Appellant bank refused to re-credit the account of the Respondent, he instituted this suit at the lower court.
The story told by the Appellant differs. The Appellant claimed the dollars were paid in with six different tellers on the same day; that the Respondent was informed that there was no equipment for verifying the authenticity of the currency in the branch. The Appellant claimed it was then agreed that the dollars should be paid into the Respondent's account subject to its verification at their head office; that photocopies of the dollars were made; that the dollars were sent for verification that same day and it was discovered to be counterfeit; that the next day, they reversed the credit entry and called the Respondent to come and retrieve the fake dollars but he refused to do so and instead instituted this suit..
Pleadings were filed and exchanged. At the conclusion of trial, the trial Court delivered judgment ordering the Appellant/Defendant to re-credit the Respondent/Claimants account with the sum of U.S$51,700 being the sum lodged into the account. The court further awarded the Respondent/Claimant N1 million damages and N200, 000.00 costs.
The Appellant/Defendant being dissatisfied with the Judgment appealed against it by a Notice of Appeal dated 3rd day of December, 2013 with five grounds of appeal. The Respondent also dissatisfied with certain parts of the judgment filed a Notice of cross-appeal which was subsequently amended by the order of court. It also has five grounds of appeal.
The parties filed and exchanged briefs of argument. The Appellant's brief of argument was settled By Oluyomi E. Olawore Esq. and from the five grounds of appeal; he distilled two Issues for determination as follows;
1. Whether the Respondent proved that he paid genuine US dollar currency into his account with the Appellant? Distilled from Grounds 1, 2 and 5 of the Notice of Appeal.
2. Whether or not the lower court was correct in awarding the Respondent, general damages? Distilled from Ground 4 of the Notice of Appeal.
The Respondent/Cross Appellant's brief was settled by Israel OkpakoEsq. For the main appeal he formulated three issues for determination as follows:
1. Whether the evidence/exhibits proffered by the Respondent/ Cross-Appellant before the lower court did not establish the facts that he paid genuine U.S. $Dollar currency into his account; and the appellant acknowledged and received same.
2. Whether the learned trial judge was in error in holding among others that "failure of the Appellant to produce the real fake dollars in its possession" is very fatal to Appellant's case.
3. Whether or not the learned trial judge was in error in awarding in favour of the Respondent/Cross-Appellant general damages?
For the Cross-Appeal, the Respondent/Cross-Appellant out of the five grounds in his Amended Notice of Cross Appeal formulated four issues as follows:
1. Whether the learned trial judge was not in error for his failure to consider and make pronouncement as to payment of pre and post judgment interest on the judgment sum? Whether or not the Appellant is obligated to pay pre and post judgment interest on the judgment sum. Distilled from grounds 1 & 2 of Notice of Cross-Appeal.
2. Whether the learned trial judge was not in error in his failure to award exemplary/ancillary damages against the appellant as prayed by the respondent/cross-appellant in the statement of claim. Distilled from ground 3 of Notice of Cross-Appeal.
3. Whether or not the learned trial judge was not in error in evaluating and giving probative value to Exhibits AL 34. Distilled from ground 4 of Notice of Appeal.
4. Whether the learned trial judge was not in error in holding at page 13 of his judgment that damages is not awarded for breach of trust, contractual relation and breach of duty of care. Distilled from ground 5 of Notice of Cross-Appeal.
The Cross Respondent in his brief formulated the following issues for determination:
1. Whether the Cross-Appellant pleaded and sufficiently proved facts in relation to pre and post judgment interest claims before the lower court. Distilled from Grounds 1 and 2 of the Notice of Cross Appeal.
2. Whether the Cross-Appellant pleaded and proved his entitlement to general damages and exemplary/ancillary damages against the Cross-Respondent. Distilled from Grounds 3 and 5 of the Notice of Cross Appeal.
3. Whether or not the lower court was correct in evaluating and giving probative value to Exhibit AL 34. Distilled from Ground 4 of the Notice of Cross Appeal.
The Appellant also filed a Reply brief on the 30th April, 2014.
MAIN APPEAL:
I have looked through the issues formulated by the parties. The Appellant's issues one and two are the same as the Respondent's issues one and three. The Respondent's issue two was argued together with his issue 1. For that reason I shall adopt the Appellant's two issues in the determination of this appeal.
ISSUE ONE
Whether the Respondent proved that he paid genuine US dollar currency into his account with the Appellant? Distilled from Grounds 1, 2 and 5 of the Notice of Appeal.
APPELLANT'S ARGUMENTS:
Learned counsel for the Appellant on issue one submitted that the learned trial Judge was in error in holding that the tellers which the Respondent tendered were sufficient evidence of the deposit of genuine U.S Dollar currency notes into his account. Counsel contended that the tellers provide unequivocally that acceptance of the deposit was subject to verification; that the tellers tendered by the Respondent were not issued by the Appellant and that the evidence before the court established without doubt that the source of the U.S Dollar currency deposited was not authorized and therefore incapable of being a source of genuine currency. Counsel submitted that in addition to all the above, the currency machine of the Appellant at its head office found the currency not to be genuine. Counsel further made reference to material contradictions in Exhibit AL21 (Letter written by the respondent to the Appellant Bank), letters written to the Appellant bank by Respondent's counsel and Exhibits AL2- AL10 (tellers tendered by the Respondent) and submitted that the contradictions establish beyond doubt that the deposits were made in six different transactions on the same day as opposed to the claim of the Respondent that the transactions were done on six different days. He submitted that the evidence elicited from the Respondent during cross-examination shows that the currency did not come from an authorized source. He posited that the contradictions in the pleadings and evidence led by the Respondent and the statements in the various correspondences between the Respondent and his counsel on the one side and the Appellant bank on the other side constitute admissions which ought to be taken against the Respondent. He cited the cases of NAS LTD V UBA PLC 2005 14 NWLR PT 945. 421 @ 431-435 and SIESMOGRAPH SERVICES NIG LTD V CHIEF KEKE OGBENEKWEKE EYUAFE 1976 VP. 10 NSCC 434 @439.
Learned counsel for the Appellant further submitted that it was a term of the contract between the parties that the acceptance of the currency was subject to verification and that the dollars having failed the verification test, the Appellant was entitled to reject the currency and as such the onus of proving that the currency deposited was indeed genuine is on the Respondent and not on the Appellant as held by the trial judge. Counsel posited relying on C.O.E.EKIDIALOR V OSAYANDE 2010 6 NWLR PT. 1191 423&450 that the tellers serve as the contract terms of the parties and having contained the term entitling the Appellant to reject the currency upon verification, the parties were bound by the contract terms.
He cited Section 5 of the counterfeit Currency (special provisions) Act, Cap C35, Laws of the Federation of Nigeria, 2004 to the effect that it is an offence to accept counterfeit currency and submitted that by rejecting the US Dollar currency notes being counterfeit, it acted in accordance with the law.
Counsel further submitted that the lower court was in error by raising the standard of proof from balance of probability to beyond reasonable doubt, as by rejecting the currency as not genuine, the Appellant did not thereby raise any allegation of crime; that neither the pleading nor the evidence adduced at the trial raised any imputation of crime and that just as parties are bound by their pleadings, the court itself is bound by the pleadings filed before it and cannot go outside it. He cited the case of ADEMESO V OKORO 2005 14 NWLR PT 945 308 @ 319.
Counsel vigorously contended that at the trial court, the Appellant was able to establish beyond doubt that the source of the US$ Dollar currency was shrouded in secrecy as the Respondent made contradictory statements under cross examination and in his letter (Exhibit AL21) about the source of the currency. On failure of the Appellant to produce the real fake dollars in its possession, learned counsel submitted that copies of the dollars were made and given to the Respondent and that the copies tendered in evidence were not objected to by the Respondent and neither were they shown not to be the copies of the ones given to the Respondent. Counsel argued that exhibit AL21 at page 70 of the record, established, contrary to the contention of the Respondent that copies of the currency were indeed made. Counsel submitted that there can be no better proof than the admission against interest of the party who alleges the contrary. Counsel further submitted that in determining whether currency was genuine, it is the prerogative of the bank not to accept a deposit, based
on its use of special machines which upon verification revealed that the currency deposited were not genuine. He urged us to hold that the findings of the lower court were at variance with and unsupported by the evidence established before the court, and to resolve this issue in favour of the Appellant and against the Respondent
RESPONDENT'S ARGUMENTS:
Learned counsel for the Respondent on his issues 1 and 2 submitted that the learned trial judge did not in any way err in holding that that the tellers which the Respondent tendered were sufficient evidence of the deposit of genuine U.S Dollar currency notes. He contended that the argument of the Appellant about receiving the currency subject to verification was an afterthought as Exhibit AL23 indicated that the appellant's representative in his statement of defence averred that the appellant received the deposits on the assumption that it was genuine. He cited the case of U.B.A PLC V AKPARABON COMM.BANK (NIG) LTD (2005)35 W. R. N(P. 145) to the effect that assumption is not a fact and it is misleading to rely on assumption as basis for a legal submission. Learned counsel submitted that there is no evidence on record to show that the Appellant received the deposit subject to verification as the terms contained in the Tellers only apply to cheques pending clearing. Relying on the case of ACP V NDOMA EGBA, 10 NWLR (2000) (PT 675) 229 CA Counsel submitted that the documents from which contract between the parties can be inferred are the statement of account and the tellers and that these create statutory contractual duty between the Banker and the customer.
Counsel referred to Section 167 (c) of the Evidence Act, 2011 which provides that the court is entitled to presume the existence of any fact which is likely to have happened taking into consideration the common course of natural events and submitted that the tellers and statement of account are sufficient evidence to invoke the presumption of the genuineness of the currency.
He submitted that since it was the Appellant that claimed that the currency were not genuine, the onus is on it to prove that the currency were not genuine. Counsel submitted relying on BUHARI V OBASANJO (2005)Vol.50,WRN (P.94) and the provisions of section 131(1), 136 and 167(d) of the Evidence Act, 2011 that in civil matters, it is the party that
asserts the existence of a particular fact that should adduce evidence to prove the fact.
Counsel submitted that the staff of the Appellant Bank duly authenticated the currency notes before processing the tellers. He further submitted that the staff never accepted it subject to verification; and that for the Appellant to claim after authentication and receiving the dollars that the currency were counterfeit upon verification at the Appellant's head office was a deliberate act to swindle the respondent. Counsel on their issue 2 submitted that the obligation imposed by law on the Appellant is not to accept currency notes that are not genuine, and that the appellant staff checked and verified the currency notes before processing the tellers and crediting the Respondent's account and by so doing a debtor/creditor relationship was created. Counsel further submitted that the trial court was right in its decision that the failure of the appellant to tender in evidence the purported fake dollars still in its possession was fatal to its case. He urged us to resolve issues land 2 in favour of the Respondent and to dismiss the appeal.
RESOLUTION OF APPELLANTS ISSUE 1 AND RESPONDENT'S ISSUE 2
After a careful appraisal of the submissions of counsel on these issues, I am of the view that a good starting point is the issue of burden of proof. Section 137 of the Evidence Act, 2011 provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side, regard being had to any presumptions that may arise on the pleadings. By 137 (2) if such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively until all the issues in the pleadings have been dealt with. Burden of proof in civil cases has two distinct meanings, viz (a) Burden of proof as a matter of law and pleadings usually referred to as Legal burden or the burden of establishing a case; (b) Burden of proof in the sense of adducing evidence usually described as the evidential burden. While the legal burden of proof is always stable and static, the evidential burden of proof shifts from one side to the other as the case progresses according as one scale of evidence or the other preponderates. In civil cases while the burden of proof in the sense of establishing the case initially lies on the plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendants and vice versa as the case progresses. SEE FEDERAL MORTGAGE FINANCE LTD V EKPO (2004) 2 NWLR (PT 856) 100 AT 130 PER OLAGUNJU JCA; BALOGUN V LABIRAN (1988) 3 NWLR (PT 80) 66; NNAEMEKA OKOYE A ORS V OGUGUA NWANKWO (2014) LPELR-23172 (SC). Generally, the burden of establishing facts upon which legal rights and liability depend, in accordance with sections 135 and 136 of the Evidence Act, Cap 112,LFN 1990 (now contained in CAP E14, LFN 2004, Sections 131-132), is on the person who asserts the fact(s). Section 131(1) of the Act provides that whoever desires any court to give Judgment as to any legal right which liability is dependent on the existence of facts which he asserts must prove that those facts exist. Section 132 of the same Act provides further that the burden of proof in a suit or in a proceeding lies on that person who will fail if no evidence at all were given on either side. While describing the phrase BURDEN OF PROOF" Dennis I.H; in his book "The Law of Evidence, '(2nd Ed; Sweet & Maxwell, London at p.369) stated inter alia: 'The Term burden of proof, also known as onus of proof refers to the legal obligation on a party to satisfy the fact finders, to a specified standard of proof, that certain facts are true. The facts for this purpose are the facts in issue, the facts on which the legal rights and liabilities of the parties to the case depend
.. There may be several facts
in issue in a given case and the burden of proof of different issues may be differently allocated amongst the parties." NNAEMEKA OKOYE & ORS V OGUGUA NWANKWO (2014) LPELR -23172. SC
In the instant appeal, the legal burden of establishing the case in the first Instance lies on the Respondent/Claimant who claimed to have lodged the sum of genuine U.S$51,700 into his account with the Appellant/Defendant Bank and which said sum was reversed on the allegation that the currency lodged were not genuine. The Respondent/Claimant had averred in paragraph 8 of his statement of claim that the money he lodged into his account were genuine US$ dollar currency. The burden consequently rests squarely on the Respondent to prove not only that he paid in the said $51, 700 into his account but also that they were genuine dollars. It is only after the Respondent has discharged this onus that the evidential burden will shift to the Appellant to prove the contrary. The Respondent pleaded and led evidence to show that the sum was actually lodged into his account over a period of six days after the operation manager of the Appellant by name Mr. Dike Kenneth duly counted the money, thoroughly screened and verified the genuineness of the currency before processing the tellers." The Appellant
on the other hand pleaded and led evidence to show that the money was paid in on one single day, 23/09/09 with six different tellers and that its acceptance was made subject to verification of the authenticity of the dollars as clearly stipulated in the tellers which is the contract between the parties. The Appellant further averred and led evidence that the branch had no equipment to properly verify the authenticity of the dollars and had to send the dollars to their head office branch for verification. The Appellant averred and led evidence that photocopies of the dollars were made and the original copy given to the Respondent who was advised to come back the next day 24/09/09 for the outcome of the verification. The verification revealed that the dollars were counterfeit and the credit in the Respondent's account was consequently reversed. The parties disagreed as to whether the money was paid in over a period of six days or in one single day, 23/09/09. The Appellants disowned the tellers tendered by the Respondent and claimed they were contrived. They tendered the tellers which they claimed the Respondent used in paying in the money. How did the learned trial judge deal with this piece of evidence? In its judgment at page 503 - 504 the lower court observed:
"The Court is of the view that this allegation of the Defendant is a criminal allegation which ought to be proved beyond reasonable doubt. It is not enough to suspect a person of having committed a crime there must be evidence which identifies the accused with the offence, and it was his act which caused the offence. See AKINYEMI VS STATE (1996) 6
NWLR (PT 607) 449 CA------------------- In this instance (sic) case, the Defendant alleged that the tellers relied on by the
Claimant did not originate from it, this on its own is a criminal act which the Defendant ought to prove beyond reasonable doubt. Although the Defendant tendered tellers challenging the ones tendered by the Claimant. This in the view of the Court will not suffice as prove (sic) beyond reasonable doubt."
With all due respect, the lower court completely misconceived the issues and the summation above merely begs the question. There was no allegation of commission of a criminal offence in the pleadings and the parties are bound by their pleadings. The claim of the Defendants was simply that the story of the Respondent was not true; that the tellers tendered by the Respondent were contrived and they pointed out evidence in proof of the fact that the tellers were indeed contrived. The trial court ought to have evaluated the pieces of evidence and made a finding of fact on the evidence. Exhibit AL21 at page 70 of the Record is a personal letter written by the Respondent to the Appellant bank captioned "RE: US$ 51,700 LODGMENT INTO MY ACCOUNT" Therein, the Respondent stated in the first line that "On 23rd September 2009, 1 paid the above sum of money into my account in your bank but was reversed the second day due to some reasons I could not clearly understood (sic)." This letter was tendered by the Appellant through the Respondent under cross-examination The Respondent did not deny authorship of the letter. It is quite clear then from Exhibit AL 21 that the Respondent misrepresented the facts when he averred in his statement of claim and in his written deposition that he paid the dollars into the bank on six different days. From his letter Exhibit AL 21 the money was paid in on 23/09/09. This is further confirmed by the statement of account obtained by the Respondent from the bank. The entries therein show that the whole $51,700 was lodged into the account on 23/09/09 with six separate tellers exactly as stated by the Appellant. The statement also showed that the reversal happened the next day 24/09/09 as confirmed in the Respondent's letter Exhibit AL21. The tellers tendered by the Respondent indicated the branch as Sango Otta which is in Ogun State contrary to Exhibit AL 22 at pages 71 - 72 of the Record which is a letter from the Respondent's counsel to the Appellant confirming that the lodgment was through the Ogba Ijaye branch of the bank on the 23rd of September 2009 through six deposit slips. The letter also confirmed that the following day 24th of September 2009, the Appellant contacted the Respondent by phone informing him to come and collect his dollars as the re-verification exercise in the head office confirmed that the dollars were fake. At page 34 of the Record, there is also a letter from J.E.I. Okpako & Co (Respondent's counsel) to the Appellant bank. The letter was tendered in evidence by none other than the Respond himself and reads in part as follows:
We have been briefed and our services retained by Mr. Akingbe Sote Leye Dickson of 18, Obafemi Awolowo Way, Ikeja, Lagos who we hereby refer to as "our client" and on whose behalf and instruction we write you this letter. Our client has reliably informed us of the following facts:
1. That he has been your customer for some years and he has carried out some credible and legitimate transactions with the bank.
2. That he opened and operates current account No 0332080297559001 with your branch at Sango-Ota but he carries out most of his transactions with the nearest branch to him at the moment of need.
3. That he paid in some money into his account through your
branch at Ogba Ijaiye in the following sequence
The above is further confirmed by paragraph 7 of the Respondent's statement of claim at page 3 of the Record that the claimant lodged the money into his account through the defendant's branch at Ogba, Ijaiye, Lagos. These are all admissions by the Respondent and his lawyer contradicting in every material particular the Respondent's later statements that the dollars were paid in within a period of six days and that the bank kept the dollars for 10 days; that the payment as shown in his contrived tellers were at Sanqo Otta branch of the bank. There is also evidence in the Record of Appeal that photocopies of the dollars paid in for verification of their authenticity in the head office of the Appellant were made. The Respondent had denied that photocopies were made or that he was given copies. The relevant paragraphs of the Statement of Defence are at page 65 of the Record:
7. The Defendant avers that its officials informed the Claimant that it did not have currency verification equipment at the branch and would have to take the currency to its headquarters to verify the genuineness of the currency.
8. The Defendant further avers that the Claimant agreed to deposit the said sum of $51, 700 with it subject to verification provided that if any part or all of the currency is not authenticated as genuine the same will be rejected and returned to the Claimant. Tellers of the same date, 23/9/09 initialled by its most senior official in the area were issued to Claimant.
9. The Defendant avers that it was on the basis of this understanding that copies of the currency notes were made and given to the Claimant with a request that Claimant should come to the bank the following day, 24/9/2009 to know the outcome of the verification exercise."
The above paragraphs were traversed in the Respondent/Claimant's Reply beginning at page 108 of the Record as follows:
4. The claimant denies paragraph 7 of the defendant's statement of
defence. And hereby says that no official of the defendant informed him that there was no currency verification equipment at the branch at the time he made the payments.
5. The claimant denies paragraph 8 of the statement of defence and hereby says that he has not agreed or entered any agreement with the defendant to deposit the said money subject to
verification. The tellers dated 23/09/2009 initiated by his most senior officer as claimed by the defendant are falsified. That the original tellers filled by him (the claimant) bear Sango-Otta as the branch as opposed to the forged ones by the defendant that bear Ogba as branch.
6. The claimant denies paragraph 9 of the statement of defence, as there was no basis of understanding between him and the defendant. And no copies of the currency note were given to him. The defendant is put to the strictest proof thereof.
The above denials by the Respondent/Claimant were completely contradicted by the Respondent's personal letter to the bank Exhibit AL21 and his solicitor's letters to the bank. The Exhibits are at pages 70 and 71 of the Record. Extract from Exhibit AL 21 read as follows:
"While I have no reason to doubt your integrities but I find it very difficult to agree with your complain and believe that the same notes I deposited you likely want to return back to me for the following reasons.
1) Your overnight custody of the money in your till may be too long for you to come up with such complains.
2) Even though you made photocopy of the money, but
you refused to let me sign against it or have a copy for myself in other to keep track of the serial numbers.
3) And any test on the money should be in my presence and to my knowledge any time any day."
Extracts from Respondent's Solicitor's letter to the bank Exhibit AL 22:
"Our client reliably informed us and we verily believed him that he made a total lodgement of the said sum through your Ogba Ijaye branch on the 23rd September 2009 through six deposit slips. We further learnt from our client that the money was duly counted screened and verified to be complete and genuine by your cashier upon which six deposit slips were duly stamped acknowledging receipt of same and given to our client.
It was to our client's chagrin that he was contacted on phone by your officials on the following day the 24th September 2009 that your head office re-verified the money and found it to be fake dollars, upon which he was requested to come and collect same."
From the above extracts, four vital facts emerge. Firstly, the dollars were paid in on 23/9/09 with six deposit slips and the slips bear "Ogba" as shown in the deposit slips tendered as the correct deposit slips by the Appellant as against the contrived tellers by the Respondent which bore "Sango Otta". Sango Otta is in Ogun State. Secondly, the Respondent was contacted the following day 24/9/09 and informed that the dollars were fake contrary to the later statement of the Respondent that he was contacted on 2/10/09. (Page 315 of the Record: cross-examination of the Respondent testifying as CW1). Thirdly, the Respondent in Exhibit AL21 admitted that the dollars were photocopied but were not signed or given to him.; fourthly, the evidence is overwhelming that the tellers tendered by the Respondent were contrived while the tellers tendered by the Appellant are the genuine ones with which payment was made into the account of the Respondent. The tellers tendered by the Respondent all showed the branch to be Sango Otta which is in Ogun State and could not have been used to make deposits in Lagos. The deposit slips tendered by the Appellant and also the statement of account which the Respondent did not dispute and on which he actually placed reliance show that the six deposit slips were all credited to the account of the Respondent on 23/09/09 in the Appellant's Ogba branch and that the reversal was made on 24/09/09. These documents constitute the contract between the parties. They are bound by it. The Respondent contended that the endorsement on the tellers relate only to lodgements of cheques pending clearing and does not give the Appellant any right for further verification of cash paid into an account evidenced by a stamped and initialled teller. A careful scrutiny of the endorsement will reveal that there is a paragraph between the endorsement relating to un-cleared cheques and the endorsement relating to deposits being subject to final verification. This is how the endorsement appears:
"Customers are informed that the bank reserves the right at its discretion to postpone payment of cheques drawn against nucleated effects which may have been credited to the account.
The deposit is subject to final verification"
The Respondent's contention is that there was no evidence before the lower court that the dollars
de