Union Bank of Nigeria Plc V. Mr N. M. Okpara Chimaeze (2006)
LawGlobal-Hub Lead Judgment Report
U.M. ABBA AJI, J.C.A.
This appeal is against the judgment of Edo State High Court sitting in Benin presided over by Hon. Justice V.A.O. Omage J (as he then was) delivered on the 31st day of May 1996.
The Respondent as the Plaintiff sued the Appellant as the Defendant claiming the following reliefs:-
“The Plaintiff claims against the Defendants jointly and severally the sum of thirty million Naira (N30,000,000.00K) being special and general damages for breach of contract in that on or about the 10th day of May, 1994, the Defendants at its Benin City branch, dishonoured the Plaintiff’s cheque No. 85053 of 5/5/94 for N205,936.50k in favour of Lever Brothers Nigeria Plc without cause.”
In the amended statement of claim filed by leave of court on 11th October, 1994, the plaintiff claimed as “particulars of special damages” as follows:-
Money deducted from Plaintiffs account N206,000,00k
Loss of profit for 1994/95 N10,000,000.00k
Solicitors fees N250,000.00k
General Damages N19,544.00k
Total N30,000,000.00k
Pleadings were duly filed and exchanged. The Respondent testified and called two other witnesses and the Appellant called four witnesses. The facts of the case as can be deduced from the pleadings and the evidence of the witnesses are clear and unambiguous.
The Plaintiff/Respondent is a businessman and a trader based in Benin City and an appointed distributor of all Lever Brothers Nigeria Plc products in Edo, Delta, and Kwara States. He also holds a current account No. 1971261605 with the appellant bank at its Mission Road, branch office, Benin City. The Respondent on 9/5/94 lodged a total sum of N206,000.00k into his said account through Miss D. Nwakaeze, a sales girl and cashier with the Respondent. The Respondent on 5th/5/94 issued cheque No. 85053 for N205,966.50 (Two hundred and five thousand, nine hundred and sixty six naira, fifty kobo) to Lever Brothers Nigeria Plc (LBN) to cover credit purchase of its products. When the said cheque was presented to the Appellant for payment on 10th/05/94, it was returned unpaid, with the endorsement “Drawer’s Attention Required”. The Respondent’s case was that at the time this cheques to Lever Brothers Nigeria plc was returned unpaid by the Appellant, he had a credit balance of N207,978.00k (Two hundred and seven thousand, nine hundred and seventy eight Naira) in his account and that a sum of N206,000.00(two hundred and six thousand Naira) was wrongly debited from his account. It was also the Respondent’s case that the Appellant’s dishonour of his cheques caused him special and general damages.
The Appellant’s case was that the so called cash lodgment of N206,000.00k claimed by the Respondent was fictitious in that Miss D Nwakaeze did not lodge any physical cash in the plaintiffs account. That any document evidencing such lodgment was fraudulent and fictitious book entries. It was the Appellants’ case that there was a conspiracy between the Respondent’s staff and one of its own staff to perpetuate the fraud. That when the Appellant discovered the fraud, it had no other option than to reverse the fictitious entries.
At the close of evidence, the learned trial judge in a considered judgment gave judgment to the Respondent as follows:-
“It is the judgment of this court that the Defendant should from the date of this judgment credit the account of the plaintiff No. 85053 with the sum of N206,000.00(Two hundred and six thousand Naira only). The Defendant shall pay to the Plaintiff, the sum of (One hundred thousand naira) N100,000.00 as General Damages, and a separate sum of N250,000.00k (Two hundred and fifty thousand Naira) as solicitors fees. The total being (N350,000.00k), Three hundred and fifty thousand naira only) which I hereby award to the Plaintiff.”
The Defendant as the Appellant being dissatisfied with the said judgment has appealed to this court upon two original grounds of appeal vide a notice and grounds of appeal dated the 4th day of June, 1996. With leave of this court granted on the 11th day of June, 2001, the Appellant filed three additional grounds of appeal.
The grounds of appeal without their particulars are hereby reproduced:-
“1. The learned trial judge erred in law in awarding the sum of N250,000.00 as special damages.
- The judgment is against the weight of the evidence adduced at the trial of the suit.
- The learned trial Judge erred in law when he held as follows:
“On the issue of variation of procedure for payment of sums above N30,000.00, I believe the testimony of P.W.2 that she was directed to make payment of the sum of N206,000.00 to the cashier, who received the money while in the service of the Defendant.”
- The Learned Trial Judge erred when he held as follows:-
“If the Defendant did’ not so believe, they would have called Mr. Nwani to deny receipt of the money which I have found that P.W.2 paid to the Defendant through Nwani.
The law of evidence S.149 (d) allows the presumption to be made that the said Mr. Nwani was not called by the Defendant because if the Defendant had called him, his evidence would have been adverse to the Defendant.”
The learned Trial Judge misdirected himself on the evidence when he held that:-
“I accept as true the testimony of P.W.2 that she paid the sum shown on MOC3 to the cashier of the Defendant by name A.K. Nwani.”
The Respondent also dissatisfied with the award of general damages has appealed to this court on a lone ground of appeal vide a notice and grounds of appeal dated the 6th day of August, 1996.
The ground reads:-
“1. The learned trial Judge erred in law when he awarded the Plaintiff the paltry sum of N100,000.00(One Hundred Thousand Naira as General Damages).”
Briefs of argument were duly filed and exchanged. In the Appellants brief settled by Ferdinand O. Orbih Esq. Three issues were formulated, viz:-
(1) “Whether or not the learned trial judge was right in awarding the sum of N250,000.00 (Solicitor’s cost) as special damages to the respondent in the circumstances of this suit.
(2) Whether or not the finding of the learned trial judge on the issue of payment of N206,000.00 was supportable by the pleadings and evidence adduced by the parties during the trial of this action.
(3) Whether or not the learned trial judge was right in his application of S. 149(d) of the Evidence Act in the circumstance of this case.”
In the Respondent’s brief settled by G.C. Igbokwe Esq, learned counsel adopted the issues as formulated by the Appellant for the determination of the appeal. These issues will therefore determine this appeal.
Arguing issue one, Orbih Esq, learned counsel for the Appellant submitted that the Respondent pleaded in paragraphs 21 and 22 of his amended statement of claim that his solicitors charged him the sum of N250,000.00k(Two hundred and fifty thousand Naira) to prosecute the appeal and that he made a deposit of N150, 000.00k (One hundred and fifty thousand Naira). He submitted that these paragraphs were denied in paragraph 2 of the statement of defence and argued that the said solicitors’ fee was not a loss arising from the return of the Respondent’s cheque.
Orbih Esq argued that the Respondent tendered a receipt of N150,000.00 and there was no evidence that the Respondent paid N250,000.00 as claimed by him under cross examination. He contended that the award of N250,000.00 by the Learned trial Judge was erroneous in that the parties are bound by their pleadings. Learned counsel argued that the Learned trial judge did not avert his mind to the obvious contradictions in the evidence of the Respondent on this issue before awarding him the sum of N250,000.00k as solicitors fees. He contented that the award was wrong in law.
Learned counsel further submitted that the solicitors fee even if proved did not arise as a result of damage suffered by the Respondent in the course of any transaction with the Appellant as the circumstances that gave rise to the special damage occurred after the cause of action in this case had arisen. That the solicitor’s fee did not form part of the basis of the breach of contract, the return of the cheque on which the Respondent rooted his cause of action. Learned counsel also argued that it is against public policy to allow the Respondent to pass on the burden of paying his solicitors fee to the other party in this case, the Appellant. Learned counsel cited and relied on the unreported case of GUINNESS NIGERIA PLC v. EMMANUEL NWOKE IN APPEAL NO. CA/B/252/98 where S.A Ibiyeye JCA had cause to comment on the award of N500,000.00k special damages being solicitor’s fee.
In his response to this issue, learned counsel for the Respondent, Igbokwe Esq. submitted that the sum of N250,000.00k as special damages was copiously pleaded in paragraphs 21 and 22 of the amended statement of claim while the statement of defence only contains a general traverse of same in paragraph 2. He argued that mere general denials in pleadings are never sufficient traverse and amounts to no denials at all with the end result that the particular pleaded fact remains unchanged and only requires minimal evidence or non at all to be admitted as proved by the trial court. He cited the following cases: –
DANIYAN v. IYAGIN (2002) 8 WRN 44; EKE v. OKWARANYA (2001)20 WRN 132 and KEZIE v. IWUOHA (1998) 8 NWLR 554.
Learned counsel further submitted that the Respondent tendered Exhibit MOC 7 a receipt for the payment of N150,000.00k deposit with a balance of N100,000.00k. He argued that the Respondent’s answer under cross examination that he paid his lawyer N250,000.00 neither amounts to a contradiction nor a sufficient contradiction to impugn the finding of the trial judge citing and relying on BARJE v. GUNDUMA (2001)13 NWLR (PT 731) 659.
On the issue of proof, learned counsel referred to the following:- Section 138 of the Evidence Act; DENSY IND. (NIG) LTD v. UZOKWE (1999) 2 NWLR (PT 591) 392 and BALOGUN v. UBA (1992) 6 NWLR (PT 247) 336.
Learned counsel also submitted that special damages are those that arise after and as a result of the cause of action not before it and that it was wrong for the Appellant to argue that solicitors fee as a head of special damages does not form part of the basis of the breach of contract.’ He relied on the following cases; STRABAG CONTRUCTION (NIG) LTD v. OGAREKPE (1991) 1 NWLR (PT.170) 733; N.B.C. PLC v. BORGUNDO (1992) 2 NWLR (PT. 591) 408; ONUIGBO v. NWEKESON (1993) 3 NWLR (PT. 238) 544; UWA PRINTER LTD v. INVESTMENT TRUST CO. LTD (1988) 12 SCNJ (PT. 1) 102; TECHNO v. NJOKU (2001) 52 WRN 177 and IMANA v. ROBINSON (1979) 3-4 SC.
It was also argued by the Respondent counsel that “wrongful dishonour of cheque” cases are SUI GENERIS and that damages therein are “at large” citing, HIRAT BALOGUN v. N.B.N. (1978) 3 SC 155 and U.B.N. v. NWOYE (1996) 3 LRCN 232.
He submitted that a successful Plaintiff in wrongful dishonour of cheque cases becomes entitled to recover on several heads of damages even without pleading and proving the said damages citing, ALLIED BANK PLC v. AKUBUEZE (1997) 6 KIR 1202 and ASHUBIOGO v. A.C.B (1966) 2 ALL NLR 203.
Mr. Igbokwe Esq argued that the unreported case of GUINESS NIGERIA PLC v. EMMANUEL NWOKE (supra) cited by the Appellant counsel is not applicable to the present circumstances of this case as it was not based on wrongful dishonour of cheques where damages are at large. Learned counsel urged the court to uphold the award of N250,000.00k by the trial judge as the Appellant has not shown any special and or sufficient reason for the said award to be upset, citing the following cases, OKOROJI v. ENUMAH (1961) ALL NLR 191; ZIK PRESS LTD v. ALVAN IKOKU 14 WACA 188; ELF (NIG) LTD VS. SILLO (1994) 6 NWLR (PT 350) 258- and IJEBU ODE LOCAL GOVT. VS. BALOGUN (1991) 1 NWLR (PT. 106) 136.
The contention here is whether the learned trial judge was right in awarding the sum of N250,000.00k solicitor’s cost, as special damages to the Respondent in the circumstances of this case. The Respondent pleaded in paragraphs 21 and 22 of his amended statement of claim that his solicitor charged him the sum of N250,000.00k to prosecute this action and that he made a deposit of N150,000.00k. Paragraphs 21 and 22 of the Respondent’s Amended Statement of Claim provides as follows:-
“(21) Plaintiff avers that he ran and briefed his solicitors Messrs G.C. Igbokwe & Co. who charged him N250,000.
(Two hundred and fifty thousand Naira) only to prosecute this action.
(22) Plaintiff avers that he made a deposit of N150,000 to the said solicitors who issued him receipt. The solicitors receipt No. 045 of 24/5/94 shall be founded upon at the trial of this action.”
In reply to the above paragraphs, the Appellant made a general traverse to the claim in paragraph 2 of his statement of defence.
Paragraph 2 of the Appellant’s Statement of Defence is hereby reproduced:-
“(2) The Defendant denies all the allegations in paragraphs 1,5,6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, and 24 as well as the reliefs contained in paragraphs 25 and 26 of the Statement of Claim and shall at the trial put the plaintiff to the strictest proof of the allegations Contained in the said paragraphs.”
A denial in a statement of defence that, “the Defendant denies a paragraph in the statement of defence and put the Plaintiff to the strictest proof thereof’ amounts to insufficient denial or insufficient traverse to put the matter thus denied in issue. See DANIYAN v. IYAGIN (2002) 7 NWLR (PT.760) 345. If the Appellant had intended to make the sum of N250,000.00 solicitor’s fee an issue, it should have been specifically traversed and or denied as is with essential and material allegations in a statement of claim. There should be no general travers in respect of essential and material allegations. They should be specifically traversed.
It is trite law that mere general denials in pleadings are never sufficient traverse and amounts to no denials at all with end result that the particular pleaded fact remains unchallenged and only required minimal evidence or none at all to be admitted as proved by the trial court. See OGBODU v. QUALITY FINANCE LTD (2003) 6 NWLR (PT.815) 147 and EKE v. OKWARANYIA (2001) 12 NWLR (PT. 726) 181.
The Respondent pleaded that his solicitors charged him N250,000.00k to prosecute this case for him. He also went further to claim the said sum as special damages in paragraph 25 of his amended statement of claim among his other heads of claim before the trial court. It is therefore my considered view that even if paragraphs 21 and 22 of the Appellant’s statement of defence were denied by the appellant, the Respondent has established same by preponderance of evidence before the trial court and therefore so find.
The Learned counsel further argued that there is contradiction in the evidence of the Respondent. The contradiction as argued by the Appellant’s counsel was that the Respondent’s evidence in chief was that he was charged N250,000.00k by his solicitor but he paid him N150,000.00k and he tendered a receipt of N150,000. That under cross examination the Respondent told the court that he paid his lawyer N250,000.00k and that there was no receipt to prove that this was the case. Learned counsel argued that the evidence of the Respondent under cross examination is at variance with his pleadings. The question is, is the contradiction in the evidence of the Respondent, as stated by the Appellant, sufficient enough as to upset the finding of the Learned trial Judge? The fact that the Respondent was charged N250,000.00k was clearly established by the Respondent. He also established the fact that he paid N150,000.00 to his lawyer who issued him with a receipt Exhibit MOC 7 which bears on its face the payment of N150,000.00 being a deposit in the suit and a balance of N100,000.00k.It is not every contradiction in the evidence of a witness that will result in upsetting a trial court’s judgment. For a contradiction to upset a judgment it must be of such a magnititude as to warrant interference with the conclusion reached by the trial court.
In the instant case, the Appellant made heavy weather on the evidence of the Respondent when he said under cross examination that he paid his lawyer N250,000.00 when infact it was only N150,000.00 that was paid. In the circumstances, I agree with the submission of the learned counsel for the Respondent that the Respondent’s answer under cross examination that he paid his lawyer N250,000.00 neither amounts to a contradiction nor a sufficient contradiction to impugn the finding of the learned trial judge, and I so find.
Learned counsel for the Appellant’ also argued that the solicitor’s fee of N250,000.00 even if proved did not arise as a result of damage suffered by the Respondent in the cause of any transaction with the Appellant. Had the breach by the Appellant not been occasioned, the Respondent would have no cause to engage the services of a legal practitioner and would not have been charged legal fees of N250,000.00k. Special damages are those that arose after and as a result of the cause of action and not before it and the argument of the appellant that the solicitor’s fee as a head of special damages does not form part of the basis of the breach of the contract is also of no moment.
The unreported case of GUINESS NIGERIA PLC v. EMMANUEL NWOKE (supra) cited by the Appellant counsel; is not decided on the same principle of law as the present appeal and cannot therefore be applied. The concept of public policy cannot be relied upon to prevent a successful litigant in wrongful dishonour of cheque when the customer holds in his account an amount equivalent to that endorsed on the cheque from the benefit of such awards. See HIRAT BALOGUN v. NATIONAL BANK OF NIGERIA LTD (19780 3 SC 155; ASHUBIOJO v. AFRICAN CONTINENTAL BANK (1966) ALL NLR 203; UNION BANK OF NIGERIA LTD v. NWOYE (1996) 35 LRCN 232. The award by the Learned trial Judge cannot be faulted and the finding cannot be disturbed. This issue is resolved against the Appellant.
The second issue is whether or not the findings of the learned trial Judge on the issue of the payment of N206,000.00k was supported by the pleadings and the evidence adduced by the parties during the trial of the action.
It was submitted by the learned counsel for the Appellant that the Respondent in his statement of claim stated that either himself or his staff had always lodged money into his account at regular hours and to regular receiving cashier. That in reply to that statement of fact, the Appellant averred that the Respondent was duly informed at the inception of his relationship with the bank that all sums of money above N30,000.00k are to be taken to the note counting room for payment into his account and that the Respondent had kept to this regulation. That such sums are not meant to be taken to the cashier. He submitted that the Respondent did not deny the above mode of payment pleaded by the Appellant and that the Respondent did not make it part of his pleading that after going to the note counting room, PW2 was directed to pay the sum in question to the regular cashier at the counter. Learned counsel contended that the evidence believed by the learned trial Judge to the effect that PW2 was directed to make payment of the sum of N206,000.00k to the cashier is not in support of any material averment in the pleading of the parties. That since the issue of mode of payment of sums above N30,000.00k was put in issue by the Appellant and has not been traversed by the Respondent it should have been taken as established by the learned trial Judge citing LOUISE & PITTS v. AKHIMIEN (1976) SC 157; (1976) 1 ANLR (PT.1) 460 and U.B.N. PLC v. JERIC (NIG) LTD (1988) 2 NWLR (PT. 536) 63. Learned counsel further argued that there were obvious material contradictions as to who filled Exhibit MOC 3 and where it was filled and that these contradictions are material because the Appellant put them in issue. Exhibit MOC 3 is the original bank teller evidencing the payment of the sum of N206,000.00k into the Bank. Learned counsel considered the evidence of PW2 and submitted that there is a contradiction in the evidence of PW2 and PW3 as to who paid in the money and the circumstances surrounding the alleged payment. That had the trial Judge considered these contradictions, he would not have come to the conclusion as he did that PW2 paid the sum shown on exhibit MOC3 to the cashier of the Respondent by name LK. Nwani.
Learned counsel for the Respondent, Igbokwe Esq submitted that the real issue at stake is whether or not the sum of N206,000.00k was actually paid and received by the Appellant’s cashier, I.K. Nwani in the course of his employment for and on behalf of the Appellant Bank and not whether the mode of payment was irregular or who infact paid the money. He submitted that the pleadings and evidence before the court show that the said money was paid to and received by the Appellant through his cashier, Mr. I.K. Nwani and as duly accepted by the learned trial Judge. Learned counsel submitted that the findings of the learned trial Judge before coming to the conclusion he reached to the effect:-
“(a) That I.K. Nwani was a staff of the Bank.
(b) That PW2 made payment as on Exh. MOC 3 to the cashier of the defendant on 9/5/94.
(c) That Exh MOC 3, of which Exh MOC 4 is not denied to be a counter part was found in the custody on the defendant’s admission when DW3 said MOC 3 was found in the cubicle of Mr. Nwani.
(d) That the onus shifts on the defendant to rebut the heavy averment of payment of the money on Exh. MOC 3 to Mr. Nwani; this has not been done.
(e) That the bank believed the said Exh. MOC 3 as sufficiently genuine as to feed the contents of it in their computer which produced Exh. MOC 5A and shows a credit in favour of the plaintiff.
(f) That “Exhibit MOC 3 was tendered from the custody of the defendant (bank) upon a notice of it to be produced.
(g) That A document is the best proof of its contents, the contents of Exh. MOC 3 cannot be better proved than by the Exhibit itself which says “Credit N.M. Okpara Chimaeze total cash N206,000.00″.This contains the stamp of the Defendant company with the date 9/5/94 and the Signature of the person which DW1 identified as That of the receiving cashier Mr. Nwani”
are based on the evaluation of the evidence at the trial and paragraphs 9 and 10 of the amended statement of claim that led conclusively to the fact that N206,000.00k was lodged into the Respondent’s account, citing AEROFLOT SOVIET AIRLINE v. S. UBA LTD (1986) 3 NWLR (PT. 27) 188.
Learned counsel also submitted that the above findings of fact are neither perverse nor manifest substantial error apparent on the face of the record sufficient for this court to upset the findings of the trial court citing the following cases; ANAEZE v. ANYASO (1993) 5 NWLR (PT.291); IKE v. UGBAJA (1993) 6 NWLR (PT.301) 539; IBIDO v. ENAROFIA (1980) 5-7 SC 42; SALIBA v. YASSIN (2002) 13 W.R.N. 59 and AWOYOOLU v. ARO (2001) 21 W.R.N. 41. Learned counsel urged the court to resolve the issue against the Appellant.
The issue here is whether or not the findings of the learned trial Judge on the issue of the payment of N206,000.00k was supportable by the pleadings and the evidence adduced by the parties.
The argument of the Appellant’s counsel was that the findings of the learned trial Judge was not supported by any evidence adduced at the trial and in view of the material contradiction in the evidence of PW2 and 3 on Exhibit MOC 3 and the failure of the Respondent to traverse the averment in the Appellant statement of defence as regards mode of payment of sums of money exceeding N=30,000.00k to the cashier, made the findings of the learned trial Judge on the issue perverse. To fully appreciate this issue it is necessary in the circumstance to consider the evidence as adduced by the PW2 and PW3 and the findings of the learned trial Judge. This is the evidence of PW2 at the trial:-
“I remember 9/5/94 my Director dropped me at Union Bank Forestry, I went into the Bank, into the counting room, there was congestion.
I counted the money and paid in the sum of N206,000.00, which was counted with machine, the cashier stamped my teller.
within the Bank Hall. I know the Cashier only inside the bank, not outside.”
PW2 stated further under cross-examination:-
“The Plaintiff signed the signature on Exhibit MOC 3, the Plaintiff gave the money to me and I handed it over to the Cashier.
I went to the note counting room.
The person who directed me to Cashier is unknown to me. He is a staff in the Bank.
The money was counted at 11.30 a.m.
He finished at something to one p.m.
I don’t know the person Cashier attended to before me. I don’t know how long I waited before it came to my turn, nor do I know the person after me when huge sums are taken to the Bank, they go to the counting room.”
PW3 also testified as follows:-
“In 1992, I opened a Current Account with Union Bank Mission Road, Now Forestry.
I opened the Account in my personal name.
I was given a Current Number of 1971261605.
I always put in the account sufficient sums to meet my needs. I am a Distributor of all Lever Brothers products. I was granted one week credit facilities of N206,000.00 and N206,000 for cheque facility. On 6th May, 1994, I issued a cheques Number 85053 worth N205,936.50k to Lever Brothers to cover my credit purchases. I see NOC 1, it is the cheque I issued, the date was 5/5/94 against 6/5/94 on 9th May, 94. I lodged in N206,000 to the Bank, though my Cashier P.W.1 5/5/94 against 6/5/94 on 9th May, 94. I lodged in N206,000 to the Bank, though my Cashier P.W.1 the Lever Brother presented the cheque on 12h May, 94, the Bank returned the cheque. I filled the teller myself, and gave money to the p.w.1 whom I carried to the Bank. I filled in three tellers. the p.w.2 returned with the tellers at about 3 pm.”
Under cross-examination he stated that,
“I see NOC 4A. I filled it. It is my hand writing.
I signed it. I filled the forms in my office and signed it there. On that day I filled in three tellers. The original and duplicate are from the teller. The 3rd teller is from the booklet, NOC.4. It contains two tellers.”
The issue at stake here is as rightly submitted by the Respondent’s counsel and that is whether or not the sum of N206,000.00k was actually paid and received by the Appellants cashier I.K. Nwani in the course of his employment for and behalf of the Appellant Bank and not whether the mode of payment was irregular or who infact paid the money. In his findings the learned trial judge evaluated the evidence of the witnesses as adduced before him and came to the above findings as enumerated by the Respondents counsel reproduced in this judgment and went on to hold as follows at page 63, lines 3-10 of the record of appeal,
“On the issue of variation of the procedure for payment of sums above N30,000.00, I believe the testimony of PW2 that she was directed to make payment of the sum of N206,000.00 to the cashier, who received the money as a staff of the Defendant while in the service of the Defendant. The alleged infraction of the rule does not therefore remove the liability of the Defendant. I hold and rule therefore, that the Defendant received the said sum of N206,000.00 as the sum lodged by the Plaintiff into his account No. 85053 with the Defendant on 9/5/94.”
There is no reason to disturb the findings of the learned trial Judge on this issue. Evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a court of trial which saw, heard and duly assessed the witnesses.
Where a trial court unquestionably evaluates the evidence and justifiably assesses the facts, the duty of the Court of Appeal is to find out whether there is evidence on record on which the trial court could have acted. Once there is sufficient evidence on record from which the trial court arrived at its findings of facts, the Court of Appeal cannot interfere. The findings of fact made by a trial court are entitled to respect by an Appellate Court when it is clear that the trial court had adequately performed its primary duty of evaluating and ascribing probative value to the evidence before it.
In such circumstances, such findings are to be approached by an Appellate Court with due caution and not on the basis that it would or might itself found otherwise. The essential consideration is that there is enough evidence on record from which the trial court findings can be supported. See ENANG v. ADU (1981) 11-12 SC 25; WOLUCHEM v. GUDI (1981) 5 SC 291; IWEGO v. EZEUGO (1992) 6 NWLR (Pt.249) 561; JOE GOLDY CO. LTD v. C.D.B. PLC (2003) 5 NWLR (Pt. 814) 586 and EZEKWESILI v. AGBAPULONWU (2003) 9 NWLR (Pt.827) 337.
An Appellate Court can in appropriate circumstances look at the evidence on record and make an objective finding of fact where there has been a perverse finding made by a trial court. An Appellate court is competent to tamper with the evaluation of evidence and or findings of a trial court if they are not based on proper and dispassionate appraisal of evidence given in support of each parties case or where such findings are perverse in the nature of evidence or where on the face of the record it is clear that justice has not been done in the case. See LAWAL v. ADEKOYA (1974) 6 SC 83 and BALOGUN v. AKANJI (1988) 1 NWLR (PT.70) 301.
In the instant case the Learned trial Judge has dispassionately considered and evaluated the evidence before him before coming to the conclusion that the sum of N206,000.00 has infact been paid by the Respondent to the Appellant’s Bank through its cashier Mr. Nwani, and I so find. This issue is also resolved in favour of the Respondent against the Appellant.
Issue three for determination is whether or not the learned trial Judge was right in his application of Section 149(d) of the Evidence Act in the circumstances of this case.
Learned counsel for the Appellant referred to this passage in the judgment of the learned trial Judge wherein he held as follows:-
“The conclusion to be drawn thereby is that the money on NOC.3 was believed to have been received by Mr. Nwani on behalf of the Defendant. If the Defendant did not so believe they would have called Mr. Nwani to deny receipt of the money, which I have found that P.W. paid to the Defendant through Mr. Nwani.
The law of evidence S. 149 (d) allows the presumption to be drawn that Mr. Nwani was not called by the Defendant because if the Defendant had called him, his evidence would have been adverse to the Defendant the presumption to be drawn thereby is that Mr. Nwani would have admitted receipt of the money from P.W.2 if he was called by the Defendant.”
Learned counsel submitted that Section 149(d) of the Evidence Act does not cover a situation of failure to call a particular witness, rather the Section applies where a party withholds a piece of evidence at his disposal. He cited and relied on the case of DANIEL ONIYA v. AUDU OKOLIKO (1992) 7 NWLR (Pt. 254) 500. The learned counsel contended that the Appellant’s case throughout the trial was that the money the subject matter of this litigation was never received in its Mission Road Branch. That DW3 testified that Mr. Nwani was no longer in the Appellant’s employment and that he could not be found.
Learned counsel contended that the learned trial Judge was wrong to have used Section 149(d) of the Evidence Act against the Appellant and urged that the appeal be allowed on this ground.
For the Respondent it was submitted that based on the trial Judge’s appraisal and evaluation of the pleadings and evidence in this matter and his findings of fact thereon, his application of Section 149(d) of the Evidence Act was sound and cannot be faulted. He submitted that the payment of the sum of N206,000.00k was the major issue in the determination of the suit and Mr. I.K. Nwani having been proved and accepted to be within reach of the Appellants, he being on police bail, was the only reasonable person to rebut the presumption of the payment. He argued that the trial Judge was right to have invoked the provision of Section 149(d) of the Evidence Act in the circumstances of this case citing the following cases; TEWOGBADE v. AKANDE (1968) NMLR 404; ONWUJOBA v. OBIENU (1991) 1 NSCC 494 and AKINTOLA v. ANYIAM (1961) ALL NLR 508. Mr. Igbokwe Esq submitted that the case of DANIEL ONIYA v. OKOLIKO (supra) cited by the Appellant counsel is inappropriate because it concerns matters where other evidence can be called or led in proof of the particular issue as opposed to where only a particular witness can supply such evidence. Learned counsel also urged the court to resolve this issue in favour of the Respondent.
The question that arises is whether the learned trial Judge was justified in his application of Section 149(d) of the Evidence Act Cap 112 laws of the Federation of Nigeria 1990 to the circumstances of this case. Section 149(d) of the Evidence Act provides:-
“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events human conduct and public and private business, in their relation to the facts of the particular case, and in particular the court may presume –
(a)
(b) .
(c) .
(d) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
(e) ………………………………………….. ”
Generally, Section 149 of the Evidence Act permits the court to draw inference from known facts bearing in mind the common course of natural events. It creates a certain presumptions of facts which is the logical inference of the existence of one fact from the proved existence of other facts. This is also the presumption created by this subsection.
The contention of the Appellant’s counsel was that the subsection does not cover a situation of failure to call a particular witness, rather, it applies in a situation where a party withholds a piece of evidence at his disposal. The evidence in issue here is the evidence of I.K. Nwani the Appellant’s cashier who received the money and reportably absconded but admitted to be on police bail by DW3, the Appellant Accountant. The trial Judge found as a fact from his evaluation of evidence and the pleadings that PW2 made payment as on Exhibit MOC 3 to the Appellant through Mr. I.K. Nwani who it admitted through DW3 to be its staff. The onus of proof therefore shifted to the Appellant to rebut the heavy averment of payment of the money on Exhibit MOC 3 to Mr. Nwani and this has not been done and the said I.K. Nwani was reported to the Police by the Appellant and is on Police bail vide the testimony of DW3. A party generally speaking, is not bound to call a particular witness if he can prove his case otherwise. See BELLO v. KASSIM (1969) NMLR 148 and BUBA v. THE STATE (1994) 7 NWLR 195. But if that party cannot otherwise prove his case and he nevertheless withholds the evidence of such a witness, then the subsection will apply.
The payment of the sum of N206,000.00 was a major issue in the determination of the suit and I.K. Nwani having proved and accepted to be within the reach of the Appellant’s, being on Police bail was the only reasonable person to rebut the presumption of the payment. The evidence of I.K. Nwani will determine this issue to finality one way or the other, it is therefore my candid view that the failure to call I.K. Nwali amounts to withholding of evidence.
If money was never received as alleged by the Appellant, Mr. Nwani the cashier would have cleared this issue. The evidence before the court was that Mr. Nwali was on Police bail and not that he could not be found. The fact that he was on Police bail suggest that he could be traced and found. There is therefore no reason to disturb the finding of the Learned trial Judge on the application of Section 149(d) of the Evidence Act. This issue is also resolved against the appellant.
On the whole this appeal fails and it is hereby dismissed with a cost of N5,000.00 to the Respondent.
The Plaintiff/Respondent also cross appealed against the award of N100,000.00k as being too small on one ground of appeal vide a notice and ground of cross appeal dated the 6th day of august, 1996.
The ground of the cross appeal and its particulars reads:-
“GROUNDS OF APPEAL
- The learned trial Judge erred in law when he awarded the Plaintiff the paltry sum of N100,000.00 (One Hundred Thousand Naira) as General Damages.
PARTICULARS OF ERROR
(a) The Plaintiff having successfully proved wrongful dishonour of his cheque and his trader status is entitled to substantial damages.
(b) The learned trial Judge held that the total sum of N30,000,000.00k (Thirty Million Naira) claimed by the Plaintiff is “too much at large” and awarded N100,000.00 (One Hundred thousand) only.”
The parties filed and exchanged briefs of argument. In the Cross Appellant’s amended brief of argument deemed filed on the 24/11/05, prepared by G.C. Igbokwe Esq, one issue was formulated for the determination of the appeal. The issue is, “Whether having regard to his proved trader status, the value of his dishonoured cheque, entitlement to substantial damages for wrongful dishonour of his cheque, the value of the Naira and volume of his trade, the N100,000.00 damages awarded was based on wrong principles of law and manifestly too low and paltry to warrant interference of this Honourable Court by an upward review.”
In the Cross Respondent’s brief of argument prepared by F.O. Orbih Esq one issue was also formulated for determination.
The issue is,
“Whether or not there are circumstances in this case to warrant interference by this court in the award of N100,000.00 (One Hundred Thousand Naira) general damages awarded by the trial court In favour of the Cross Appellant.”
I will adopt the issue as formulated by the Cross Appellant counsel as it encapsulates all the points to be canvassed.
It is the submission of learned counsel for the Cross Appellant that based on case law and authorities, a trader is entitled to recover substantial damages for wrongful dishonour of his cheque when he has sufficient funds in his account to meet the value of the said cheque. He cited and relied on the following cases; HIRAT BALOGUN v. NATIONAL BANK OF NIGERIA PLC (1978) 3 SC 155; ASUBIGO v. A.C.B. (1966) 2 ALL NLR 203; UNION BANK OF NIGERIA v. NWOYE (1996) 3 LRCN 232 and GIBBONS v. WEST MINSTER BANK LTD (1939) 3 ALL E.R. 577.
Learned counsel submitted that the learned trial Judge found as a matter of fact that the Plaintiff/Cross appellant is a trader. He found as proved that his cheque for N205,936.50 issued in favour of Lever Brothers Nigeria Plc was dishonoured when the Cross Appellant had sufficient fund in his account and that this dishonour was wrongful for which he is entitled to substantial damages. That it was established before the trial court that the Cross Appellant was a major distributor to Lever Brothers Nigeria Plc who suspended his credit facilities and with whom he had an annual turn over of N50,000,000.00 ask a distributor in Edo, Delta and Kwara states. Learned counsel submitted that based on the above facts and the declining value of the naira, that N100,000.00k as general damages in the circumstances is rather paltry and manifestly too low and warrants the interference of this court for an upward review.
Applying the criteria in the cases of HIRAT BALOGUN v. N.B.N. P LC (supra) and ALLIED BANK OF NIGERIA PLC v. AKUBUEZE (1997) 6 KLR 1202, Learned counsel submitted that a courts award of damages are not based on geometric calculations but on peculiar circumstances of each particular case, and submitted that the circumstances of this case will warrant a much more enhanced award of damages. Learned counsel urged us to hold that the N100,000.00k awarded by the court below is not enough substantial damages for wrongful dishonour of the Plaintiffs cheque for N205,936.50k when he is a trader and had sufficient funds in his trade account. With the Cross Respondent bank.
Learned counsel submitted that an appellate court will not interfere with the trial Judge’s assessment of damages unless it is shown to be based on wrong principles of law or manifestly too high or too low citing EBOH & ORS v. AKPOTU (1968) 7-8 NMLR 278; ZIKS PRESS LTD v. ALVAN IKOKU 14 WACA 188; ELF (NIG) LTD v. SILLO (1994) 6 NWLR (PT.350) 258 and I JEBU ODE LOCAL GOVT v. BALOGUN (1991) 1 NWLR (PT. 166) 136.
Learned counsel further submitted that the Cross Appellant from paragraph 17-23 of his amended statement of claim, pleaded and led evidence of his losses and damages, yet the trial court held that they were not proved inspite of the cardinal rule of pleadings that undenied averments in Plaintiff’s pleadings are deemed to be admitted requiring no further proof by evidence. Learned counsel referred to the following cases EGBUNIKE v. ACB (1995) 27 LRCN 219; OLALE v. EKWELENDO (1989) 4 NWLR (PT.115) 326 and BALOGUN v. UBA (1992) 6 NWLR (PT. 247) 336. Learned counsel therefore submitted that the learned trial Judge’s award of N100,000.00k was based on a wrongful and misconceived principle of law and manifestly too low based on proven facts of the case. Learned counsel urged the court to resolve this single issue in the affirmative.
In his response, learned counsel for the Cross Respondent Mr. Orbih Esq submitted that the learned trial Judge had in mind the principle that a trader is entitled to recover substantial damages for the wrongful dishonour of his cheque without pleading and proving actual damages. That the learned trial Judge not only made reference to this principle of law but also supported them with the cases of ASHUBIOJO v. ACB (1966) ANLR 482 and UNION BANK OF NIGERIA v. NWOYE (1996) 35 LRCN 232. Learned counsel argued that there is therefore no basis for an intervention with the award of N100,000.00k general damages for breach of contract. That, it is not the business of an Appellate court to interfere with general damages a warded by a trial court citing UBA v. MUDSHIRU OLADAPO ADEMUYIWA (1999) 11 NWLR (PT.628) 570 and NIGERIA BANK FOR COMMERCE AND INDUSTRY v. INTEGRATED GAS (NIG) LTD (1998) 8 NWLR (PT.613) 119 and SABRU MOTORS (NIG) LTD v. RAJAB ENTERPRISES (NIG) LTD (2002) FWLR (PT.116) 841.
Learned counsel submitted that the finding of the learned trial Judge that the Appellant failed to prove his annual profit or any of the actual items of special damages pleaded save the solicitors fee coupled with the fact that the Cross Appellant abandoned his claim for general damages, the N100,000.00k damages awarded by the learned trial Judge is gratuitous and highly generous in the circumstances.
Learned counsel submitted that the reference by the Cross Appellant to the award made by the Supreme Court in HIRAT BALOGUN v. NATIONAL BANK OF NIGERIA (supra) and the other authorities referred to in the brief are not helpful. He said this is so because the Cross appellant has pointed out in his brief that the award of damages are not based on geometric calculation but in the peculiar circumstances surrounding each particular case.
On the Cross Appellant’s submission on the declining value of the Naira, Learned counsel referred to the case of IFEANYI CHUKWU OSUNDU & CO LTD v. AKHIGBE (1999) 11 NWLR (PT.652) 1 and submitted that the Cross Appellant’s argument on the issues are of no moment in the absence of any statistics or evidence on the declining value of the naira.
On the Cross Appellant’s argument that the learned trial Judge failed to apply correctly the principle that a trader is entitled to recover substantial damages for the wrongful dishonour of his cheque without pleading and proving actual damages, learned counsel submitted that the Cross appellant lost sight of the fact that he pleaded special damages and the finding of the learned trial Judge that there was no evidence given for actual loss by the Cross appellant as a result of the Defendant’s refusal to dishonour the Plaintiff’s cheque was made against the backdrop of the pleading of the Cross Appellant on those issues. That the Cross Appellant was wrong to have attacked the findings of the learned trial Judge the way he did in his brief of argument when there was no appeal against that particular finding.
The learned trial Judge made the following finding of fact before coming to the conclusion to award the sum of N100,000.00 to the Cross Appellant, thus:-
“PW1 also testified that the Plaintiff is the distributor for LBN (Lever Brothers Nigeria) for Edo, Delta and Kwara States. In cross examination, the said witness could not say what the annual profit of the plaintiff was and what Plaintiff paid as annual tax.
Throughout the hearing, no evidence was given of the actual value of loss sustained by the plaintiff as a result of the refusal of the Defendant to honour the Plaintiff’s cheque to it, when evidence shows that the Plaintiff has sufficient sum in his account No. 85053…”
Now the question is, is this finding by the Learned trial Judge in line with the principles enunciated in the cases of, HIRAT BALOGUN v. NATIONAL BANK OF NIGERIA LTD (supra); UBN. LTD v. NWOYE (supra) and ASHUBIOJO v. ACB (supra) cited by him to support the proposition that a trader is entitled to recover substantial damages for the wrongful dishonour of his cheque without pleading and proving actual damage?
With due respect to the Learned trial Judge having fully appreciated and stated the position of the law regarding a traders entitlement to substantial damages for the wrongful dishonour of his cheque without proof, he failed to properly apply the proposition to the circumstances of this case. The Learned trial judge having found that the dishonouring of the Plaintiffs cheques was wrongful and having stated that damages to be awarded are at large, he then came to the conclusion that the sum of N30,000,000.00 claimed by the Plaintiff is too much at large. It s indeed too much at large, but what about the award of a paltry sum of N100,000.00?
The Plaintiff (Cross Appellant) testified as follows: – at page 26 of the record of appeal, lines 26-36,
” By the action of the Bank, I lost an annual profit of N 5Million Naira, I also lost the goodwill of Lever Brothers. I am a first class chief in my town. The people threatened to withdraw my title.
My annual turnover with LBN Plc is between N55-60 Million Naira per annum The Lever Brothers have not written to restore my credit facility. ”
Under cross examination the Plaintiff stated further,
“I paid tax and VAT of N5,000.00 and a personal tax of N5,000.00 as Director of a Company. I make profit of over N5,million naira”
The Learned trial Judge found as a fact that the plaintiff is the distributor for Lever Brothers Nigeria Plc for Edo, Delta and Kwara States. Perhaps the Learned trial Judge ran into a serious error when he stated in his judgment at page 63 lines 29-32 as follows:-
“Throughout the hearing no evidence was given of the actual value of loss sustained by the Plaintiff as a result of the refusal of the Defendant to honour the Plaintiffs cheque to it, when evidence shows that the Plaintiff had sufficient sums in his account No. 85053″
The principle of law as stated in the authorities cited by the Learned trial Judge is that a trader is entitled to recover substantial damages for the wrongful dishonour of his cheque without pleading and proving actual damage. In effect, the Plaintiff is entitled to substantial damages from the court without pleading and proving actual damage once it is proved that the Plaintiff’s cheques was wrongfully dishonoured by the defendant Bank and indeed as found by the Learned trial Judge in this case. The question of proof of actual loss does not therefore arise in the circumstance of this case.
It has been laid down by a long line of authorities that damages in such cases are at large which means that in such cases, a court may within reasonable limits make an award of any such sum as the court considers the circumstance of the breach of contract to honour a cheque warrants although there has been no proof of any actual loss to the customer.
The mere dishonour of a cheque by a banker is injurious to a person in trade. This is the rationale of the award without proof of actual loss. Where a Banker without justification dishonours a customer’s cheque, he is liable to a customer in damages for injury to his credit and if the customer is also a trader then damages for such injury to the customers credit will also be at large and the court may award substantial damages although there is no evidence from such a customer of any actual damage suffered by him. In HIRAT BALOGUN v. ACB (supra) the Supreme Court held that there is no need for the Appellant to plead and prove actual damage in order to be entitled to substantial damages.
As the courts award of damages are not based on any geometric calculations but on peculiar circumstances of each case, I agree with the Learned Cross appellant’s counsel that the circumstances of this case warrant a much more enhanced award of damages especially when the court found as a matter of fact that the Plaintiff/Cross Appellant is a trader and that the cheque of N205,936.50k issued in favour of Lever Brothers Nigeria Plc was dishonoured when the Cross Appellant had sufficient fund in his account and that the dishonour was wrongful for which he is entitle to substantial damages. The trial Judge also found as proved that the Cross Appellant was a major distributor to Lever Brothers Nigeria Plc who suspended its credit facilities and with whom he had an annual business turnover of over N50,000,000.00k as distributor in Edo, Delta and Kwara States. Based on the above facts, even without the declining value of the Naira being taken into consideration, which is quite legitimate for a court to take into consideration in appropriate cases and in a proper manner in the award of general damages, the Cross Appellant deserves a much more enhanced damages. See IFEANYI CHUKWU OSUNDU CO. LTD v. AKHIGBE (1999)11 NWLR (PT.675) 1 The Judgment of the court below shows clearly that the Learned trial Judge laboured under a serious misconception of the law relating to award of damages in cases of wrongful dishonour of cheque. The law is basic and remains that a proven trader is entitled to recover substantial damages for wrongful dishonour of his cheque without pleading and proving actual damage. See HIRAT BALOGUN v. NBN (supra) and UNION BANK OF NIGERIA v. NWOYE (supra).
This court is not unmindful of the fact that an Appellate court does not make it its business to interfere with award of general damages by the trial Court save when the court is satisfied that the trial Judge acted in the award of such damages upon some wrong principle of law or that, the amount awarded was so large or small as to make it a completely erroneous assessment of the damages, or, where a finding of the trial court is found to be perverse. See U.B.A. LTD v. ADEMUYIWA (1999) 11 NWLR (PT.628) 570 and NIGERIA BANK FOR COMMERCE AND INDUSTRY LTD (1998) 8 NWLR (PT.613) 119.
In the instant case, the Learned trial Judge clearly laboured under a serious misconception of the law relating to award of damages in cases of wrongful dishonour of cheque without pleading and proving actual damages. The Appellate court therefore has power to review and reassess damages awarded by the trial Judge where the Judge in assessing the same proceeded upon a wrong principle. See OKORJI v. EZUMAH (1961) ALL NLR 191; IFEANYI CHUKWU OSUNDU CO. LTD v. AKHIGBE (supra) at page 25.
On the whole, it is my considered view that the Cross Appeal succeeds on the only question of damages. Accordingly the judgment of the High Court of Benin in suit No. B/514/94 dated the 31st day of May, 1996 in so far as only it makes” an award of N100,000.00k only to the Cross Appellant is hereby set aside and in substitution therefore, it is ordered that judgment be entered in favour of the Cross Appellant against the Cross Respondent in the sum of N1,100,000.00 (One Million one hundred Thousand Naira) only. The Cross Appellant shall have costs assessed and fixed at N5,000.00 only.
Other Citations:(2006)LCN/1895(CA)
