Anuka Community Bank Nigeria Limited & Anor V. Felix Olua & Anor (2000)
LawGlobal-Hub Lead Judgment Report
TOBI J.C.A.
The 2nd appellant is Anuka Community Bank Nigeria Ltd. which operates at Nnewi. The 1st appellant is the Manager of the 2nd appellant. The applicant/respondent was a customer of the 2nd appellant at all times material to this matter. He operated a Current Account, No.500050001087 from 10th January, 1997.
The applicant/respondent was granted short-term credit and overdraft facilities by the 2nd appellant at different times. The appellants claimed that on 14th May, 1997 and 23rd May, 1997, the applicant/respondent was granted overdraft facility of N400,700.00. The applicant/respondent put the figure at N400,000.00 which leaves a difference of N700.00. The applicant/respondent surrendered a UBA cheque for N350,000.00 as security for the loan. According to the appellants, when the applicant/respondent failed to liquidate the facility, the UBA cheque surrendered by him was presented for payment. The cheque was dishonoured. The appellants petitioned the Divisional Police Officer Central Police Station, Nnewi in respect of the dud cheque issued by the applicant/respondent.
On this point, it is the case of the applicant/respondent that following the admission of the appellants, at the time the cheque was presented for payment, he was indebted to the appellants less than the value of the cheque. The police arrested and detained the applicant/respondent on 11th September, 1997 for about seven hours for issuing a dud cheque.
The applicant/respondent filed a motion at the lower court for the following reliefs:
“(1) Declaration that the arrest, harassment, intimidation and detention of the applicant at the first respondent’s Central Police Station Nnewi and State C.I.D. Awka at the instance of the second and third respondents is unconstitutional, unlawful, illegal, null and void.
(2) An order restraining the respondents from further arrest, detention, intimidation and harassment of the applicant.
(3) An order restraining the respondents or their agents from further arrest, detention, harassment and intimidation of the applicant howsoever, for any reason connected with or pertaining to the cheque issued by the applicant to Anuka Community Bank Nig. Ltd. as security for a loan/overdraft.
(4) N5 million damages for the infringement of the rights of the applicant to personal liberty and freedom of movement.
(5) And for such further or other orders as the Honourable court may deem fit to make in the circumstances.
The learned trial Judge granted reliefs (1) and (2). He did not grant relief(4). He however amended relief(3) as follows:
“An order restraining the 2nd and 3rd respondents from using the Nigeria Police Force against the applicant for recovery of loan, overdraft or any debt owed the 2nd and 3rd respondents.”
The Judge also awarded damages of N500,000.00 as opposed to the N5 million sought by the applicant/respondent. In his words:
“Unlawful arrest and detention are deprivations of personal liberty and freedom of movement. I assess and fix damages at N500,000.00 against the respondents jointly and severally for infringement of the applicant’s right to personal liberty and freedom of movement.”
Aggrieved by the decision of the learned trial Judge, the appellants have come to this court. Briefs were filed and exchanged. The appellants formulated the following issues for determination:
“(a) Whether from the totality of the processes filed in this matter, the facts annexures, submissions of counsel and ruling, enforcement of fundamental right to personal liberty and freedom of movement was the principal or fundamental claim? In other words, was this matter one cognisable under the Fundamental Rights Enforcement Procedure Rules 1979.
(b) If the answer to the above question is in the affirmative, was the learned trial Judge right in his conclusions that the arrests and detentions of the applicant at CPS Nnewi for about SEVEN hours and State CID Awka for almost a day not justified, excused or permitted by law in view of section 32(1) (b) (c) of 1979 Constitution.
(c) Was the learned trial Judge right in his conclusions that the 2nd and 3rd respondents/applicants did not merely report the applicant to the police for issuing dud cheque but went on to use the police to recover the overdraft loan and that the police overstepped their bounds when they went ahead to embark on the recovery of the loan and interests from the applicant under threats.
(d) Were the motion on notice, amended motion on notice and statement including the added claim of N5m (Five Million Naira) damages properly before the lower court? Or whether there were fundamental defects in the application depriving the lower court of jurisdiction?
(D1) Whether failure by the learned trial Judge to take oral evidence to reconcile conflicts in affidavits was proper.
(e) Was the N500,000 (Five Hundred Thousand Naira) damages awarded by the lower court proper in the circumstances of this matter?”
On the formulation of issues, counsel for the applicant/respondent said at page 1 of the brief:
“The applicant/respondent adopts the statement of issues for determination contained at pp. 3 and 4 of the appellants’ brief save issue No.3 and in its place the applicant states that the proper issue is whether recovery of debt is one of the statutory duties of the police.”
There is a little problem here. The issues in the appellants’ brief are not arranged in figures but in letters of the English alphabet. And so, there is no identification of any issue as No.3 However, Issue No.3. is likely to be Issue (c). I hope I am correct. It will be bad if am wrong. Dealing with Issue (a), learned counsel for the appellants, Mr. B.S. Nwankwo, submitted that the enforcement of the fundamental rights of the applicant was not the main or principal cause of action or fundamental issue in the matter and that the lower court was wrong to have assumed jurisdiction over same. The test to be applied in determining the appropriate answer as to whether the enforcement of the fundamental rights was the main or principal cause of action, learned counsel contended as follows: (a) what is the subject matter of the dispute between the parties giving rise to the proceedings or the character and nature of the dispute giving rise to the proceedings? (b) on what subject matter are the claims predicated? (c) will the enforcement of the fundamental right finally and conclusively dispose of the disputes between the parties? Citing B.R.T.C v. Egbuonu (1991) 2 NWLR (pt.171) 81; Egbuonu v. BRTC (1997) 12 SCNJ 99, (1997) 12 NWLR (pt.531) 29; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517. The Federal Minister of Internal Affairs and others v. Shugaba Darman (1981) 1 NCLR 25; Ransome-Kuti v. Attorney-General of the Federation and others (1985) SC 417, (1985) 2 NWLR (pt.6) 211, learned counsel submitted that the learned trial Judge was clearly in error to have entertained the matter under the Fundamental Rights Enforcement Procedure Rules when same was matter of banker/customer dispute, which involved a procedure for loan recovery created by contract and at best tortious wrongs actionable via writ of summons under the High Court Rules. He cited sections 121 and 122 of the Torts Law of Anambra State.
On Issue (b), learned counsel submitted that the trial Judge was clearly in error when he held that the arrests and detentions did not come within any of the exceptions of section 32 of the 1979 Constitution, when there was abundant reasonable suspicion that the applicant had committed the offence of issuing dud cheque or obtaining credit under false pretences. He cited sections 2 to 15 of the Criminal Procedure Law of Anambra State, 1991 and the case of Duriminiya v. Commissioner of Police (1962) NNLR 70 at 73 and 74.
Learned counsel submitted on Issue (c) that the trial Judge was not justified when he held that the appellants did not merely report the issuance of dud cheque to the police, they went on to use the police to recover the overdue loan. Counsel examined some depositions in the affidavit and submitted that it is not the function of a trial court to make for the parties a case different from what they presented before the court.
On Issue (d), learned counsel submitted that since there was no proof of service of the motion for amendment, there was a fundamental defect which deprived the lower court of jurisdiction. Service of a process is a sine qua non for assumption of jurisdiction and where there is no proof of service, subsequent proceedings thereto are nullities and the participation of the other parties does not constitute a waiver, learned counsel argued. He cited NBN Ltd. v. Guthrie (Nig) Ltd (1993) 3 NWLR (pt.284) 643 and submitted that the proceedings before the lower court from 7th October, 1998 till delivery of judgment were null and void and of no legal effect and ought to be set aside accordingly. Counsel submitted in the alternative that the proceedings of 7th October, 1998 in which there was no proof of service of the motion for amendment on Ikenga-Metu’s chambers for the then 3rd and 4th respondents, save oral assertion of counsel (which is no proof in law), ought to be set aside.
Counsel called the attention of the court to Order 2 rules 1 and 2 of the Fundamental Rights (Enforcement Procedures) Rules and the case of Din v. Attorney-General of the Federation (1986) 4 NWLR (Pt.87) 147.
Learned counsel submitted on Issue (d) (1) that the trial Judge was wrong in law to proceed to trial and ruling in this matter without taking oral evidence to reconcile material contradictions in the affidavits. Citing Falobi v. Falobi (1976) 9-10 SC 1; Adkins Scientific Ltd. v. Aladetoyinbo (1995) 7 NWLR (pt.409) 526, learned counsel pointed out at page 11 of his brief what he regarded as material contradictions in the affidavits.
Learned counsel pointed out on Issue (e) that the trial Judge did not state whether the N500,000.00 he awarded was general or special damages. While presuming that it could be general damages, counsel submitted that the sum of N500,000.00 awarded to the applicant/respondent was colossal in view of the fact that he was detained for seven hours and less than a day in each of the police stations. He contended that the amount is too high and penal in nature and does not represent a fair assessment of damages commensurate with the damages suffered. Citing Nzeribe v. Dave (1994) 10 SCNJ 161 at 165,(1994) 8 NWLR (pt.361) 124 and Odumogu v. ACB Ltd. (1976) 2 FNLR 229, learned counsel submitted that an appellate court can interfere with an award of damages made by a trial court if the trial Judge acted on wrong principle of law, or the amount awarded is so high to make it an entirely erroneous estimate of the damages the plaintiff is entitled to. He urged the court to allow the appeal.
Learned counsel for the applicant/respondent, Mr. O. G. Osuigwe, submitted on Issue (a) that the enforcement of the fundamental right of the applicant to personal liberty under section 32 and to freedom of movement under section 38 was the main or principal cause of action or the fundamental issue before the lower court. He contended that when an application is brought under the Fundamental Right (Enforcement Procedure) Rules 1979, a condition precedent to the exercise of the court’s jurisdiction is that the enforcement of fundamental rights or securing of the enforcement thereof should, from the applicant’s claim as presented, be the principal or fundamental claim and not an accessory claim. He cited B.R.T.C. v. Egbuonu (1991) 2 NWLR (Pt.171) 81 at 89. In this case, the cause of action is the arrest and detention of the applicant by the police at the instance of the appellants, learned counsel argued.
Calling the court’s attention to the ground upon which the application was brought at page 65 of the records, learned counsel submitted that the ground raises the issue of the violation of the fundamental rights of the applicant by the appellants. The issue of overdraft and or the sum outstanding at the time of arrest was ancillary or accessory of the main claim which the applicant claimed nothing in respect thereof.
Learned counsel maintained that the tests set by the appellants at page 5 of the brief are very strange and not supported by any decided authority and do not represent the position of the law on the issue. The applicant’s primary complaint was not violation of bank/customer relationship but of his fundamental rights as guaranteed under the Constitution, learned counsel claimed. He submitted that the cases of B.R.T.C. v. Egbuonuu and Tukur v. Governor of Taraba State and others (1997) 6 NWLR (Pt.510) 549 are distinguishable from the present case.
Learned counsel defined arrest as the restraint of a man’s personal liberty and submitted that a person’s right to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification, is one of the pillars of liberty. He cited Dicey’s Law of the Constitution (10th ed.) chapter 5, pages 207 and 208, and the case of Liversidge v. Anderson (1942) AC. 206. Counsel pointed out that since the action was not brought on tort, the case of Kuti and others v. Attorney-General of the Federation (supra) cited by counsel for the appellants did not arise. To the learned counsel the availability of the alternative remedy under the torts Law of Anambra State cannot deprive the applicant of his right to enforce his rights under the Fundamental Rights (Enforcement Procedure) Rules, 1979.
On Issue (b), learned counsel argued that the power possessed by the police to arrest without warrant, whether at common law for suspicion of felony or under statutes for suspicion of various misdemeanours, is subject to the requirement that the constable shall, before arresting satisfy himself that there does in fact exist reasonable grounds for suspicion of guilt. The test to be applied, with the onus of proof on a defendant seeking to justify his conduct, learned counsel further argued, must be that of a reasonable person acting without passion and prejudice.
The matter must be looked at objectively, in the light of the facts known to the defendant at the time, not on subsequent facts that may come to light. He cited Oteri v. Okorodudu and Another (1970) 1 ALL NLR 194, and submitted that there was no reasonable suspicion of the commission of an offence by the applicant.
Dealing with proof, learned counsel submitted that where the Constitution gives a right and facts have been proved which prima facie show an infringement of that right, it is for the person alleged to have infringed that right to justify the infringement and not for the person whose right has been infringed to exclude all circumstances of justification. Counsel cited Agbakoba v. The Director, S.S.S. and Another (1994) 6 NWLR (Pt. 351) 475 at 495 and Liversidge v. Anderson (Supra)
Learned counsel argued that investigation is not synonymous with arrest and that it is not compulsory that a policeman must arrest in the course of investigation. If he arrests anybody he must be prepared to justify it in accordance with the law more so, where the arrest is without warrant. The appellants woefully failed to justify the arrest and detention of the applicant, learned counsel submitted.
On Issue (c) which learned counsel called issue No. 3 he submitted that it is clear from the affidavits of the parties that the police exceeded its power by embarking on debt recovery at the instance of the appellants. He cited Ndiakaeme and other v. Egbuonu and other (1941) 7 WACA 53 and C.C.B.(Nig) Plc. v. Okpala (1997) 8 NWLR (Pt.518) 673, cases which, with respect, are not relevant to the issue.
On what counsel called Issue No.4, which is in fact Issue (d) in the appellants brief, learned counsel submitted that the motion for amendment was duly served and that the clerk in the chambers of Dr. J. C. Ikenga – Metuh acknowledged service. He pointed out that since the appellants were aware at the trial court of the amendment of the motion on notice and did not raise the issue of service of the motion at the lower court, it cannot be raised on appeal. He urged the court to refuse to entertain the point, being a fresh one. He cited Duwin Pharm. Ltd. v. Beneks Pharm. Ltd. (1999) 7 NWLR (pt.609) 50 at 54; Ibrahim v. Balogun (1999) 7 NWLR (pt.610) 254.
Counsel submitted in the alternative that if at all the appellants were not served with the motion on notice for amendment, which is denied, it was a mere irregularity which the appellants were aware of and duly waived. He cited Onifade v. Oyedemi (1999) 5 NWLR (pt. 601) 54 at 68. Since the issue of non-service was not determined by the trial court, it is not an issue in controversy between the parties. He cited Saraki v. Kotoye (1992) 11-12 SCNJ (Pt.1) 26 at 42 and 43, (1992) 9 NWLR (Pt.264) 156.
Learned counsel submitted on issue (d) (i) that the affidavits are not in conflict on crucial facts. He claimed that the appellants did not show evidence that was in conflict on an issue material to a finding in the case. It is only when the affidavits are irreconcilably in conflict on material issues that the court would first resolve such conflict by calling for oral testimony on oath before proceeding to a finding learned counsel submitted. He cited Mark v. Eke (1997) 11 NWLR (pt.529) 501 at 522; Ogwuegbu v. Agomuo (1999) 7 NWLR (pt.609) 144; Agbakoba v. The Director State Security Service (1993) 7 NWLR (pt.305) 353 at 365.
On Issue (e), learned counsel submitted that infringement of fundamental rights of Nigerian citizens must attract compensatory damages and in some cases ought to invite exemplary damages. He cited Darman v. Minister of Internal Affairs (1981) 1 NCLR 1. The primary remedy for infringement of fundamental rights is damages, the purpose of which is normally to compensate the applicant for the harm he has suffered as a result of the respondent’s conduct, and compensatory damages is the normal kind of damages awarded, counsel argued.
Arguing that the appellants acted malafide, treacherously, recklessly and most wickedly, learned counsel called the attention of the court to pronouncements of the courts in Mansour v. El-Mase Export and Import Co. (1963) 2 GLR 316 and Okechukwu v. Anigbogu (1973) 3 ECSLR 159. In assessing damages the Court of Appeal should take into consideration the depreciated value of the naira, counsel submitted. He cited Shehu v. Afere (1998) 7 NWLR (Pt.556) 115.
Learned counsel for the appellants in his reply brief mainly repeated his arguments in the appellants’ brief. He cited quite a number of the case cited in the appellants’ brief and added a few new cases. The new cases he cited are Akinsete v. Akintundire (1966) 1 ALL NLR 147; Olu-Ibukun v. Olu-Ibukun (1974) 2 SC 41; Uku v. Okumagba (1974) 3 SC 35.
Reply brief is not a forum to repeat, re-emphasise and consolidate the case made in the appellant’s brief. It is not even a forum to repair a case not properly made in the appellant’s brief. On the contrary, a reply brief is a forum to reply to new or fresh points made in the respondent’s brief. It will amount to having a second bite at the cherry if an appellant is given an opportunity in his reply brief to repeat, re-emphasise and consolidate the case he made in his brief. While the butler can extend the magnanimity to the visitor for a second round of the cherry, a court of law has not such magnanimity to allow an appellant revisit his brief to re-echo its content with a view to improving it, completely outside new or fresh points raised in the respondent’s brief. If a court of law extends such magnanimity to an appellant, the major pillars of justice and fair play demand that similar magnanimity should be extended to the respondent.
Since there will be no end to the exchange of briefs, courts will never encourage such a procedure.
Learned counsel for the appellants formulated six issues for determination of this appeal. I do not know what six issues have to do in this appeal. They are too many. Some are not issues but questions of facts. Issues are different from facts and should be so differently treated in a brief. As if the six issues are not enough, learned counsel formulated another issue at page 10 of the brief as follows:
“Another crucial issue for determination is whether the learned trial Judge was right in his ruling when at page 83 thereof he stated that it was quite unreasonable, in fact, treacherous for the 2nd and 3rd respondents to have presented the cheque for payment of N350,000 out of which sum they had received N280,000 from the applicant, and for the 2nd and 3rd respondents to carry their complaint from Nnewi Police to CID Awka is an evidence of malice more so as the Nnewi Police had almost … recovered the full amount.”
Issues are formulated serially and not in piecemeal. It is not tidy for counsel to formulate six issues at pages 3 and 4 of the brief and then formulate another issue as above at page 10, What followed the so called issue was a reproduction of a letter to the applicant/respondent as deposed to “Annexure A in the counter-affidavit of Obiora Ejiofor” I do not think there was really any need to reproduce the letter.
More than half of the respondent’s brief deal with facts and not law apart from page 2 where counsel narrated the facts of the case, he continued with the narration almost to a ridiculous state. Brief is more of a forum for arguing law than mere narration of facts. While it is conceded that in the process of arguing law a factual situation could inevitably flow in to consolidate or strengthen the legal position, a situation where a larger part or portion of the brief is devoted to the narration of facts is not ideal.
Let me first take the issue of service of the amended motion on notice. Learned counsel for the appellants submitted that the 3rd and 4th respondents in the lower court were not served. Learned counsel for the applicant/respondent submitted that they were served. Who is correct?
The record of proceedings will provide the answer.
On 7th October, 1998, G. O. Osuigwe of counsel for the applicant/respondent said:
“The ministry of Justice was served for 1st and 2nd respondents, and his file copy was endorsed to that effect, while the chambers of Ikenga Metuh was served for the 3rd and 4th respondents.”
Mr. G. O. Osuigwe thereafter moved the motion for amendment. The learned trial Judge granted the motion for amendment and adjourned the substantive motion to 9th October, 1998. Following an application for adjournment the court adjourned the motion to 14th October, 1998. On that day, Mr. Osuigwe informed the court that Mr. J. C. Ikenga Metuh asked for adjournment. Mr. B. S. Nwankwo for the respondents, who are now appellants applied for the matter to be struck out. The motion was adjourned.
On 4th November, 1998, Mr. B. S. Nwankwo held the brief of Dr. J. C. Ikenga Metuh for the 3rd and 4th respondents. Mr.Osuigwe, applied to withdraw against the 1st respondent. Mr. B. S. Nwankwo had no objection but asked for N1,000.00 costs. The court granted the application and struck out the 1st respondent from the suit. He also awarded N250.00 costs against the applicant in favour of the 1st respondent.
Mr. Osuigwe moved the motion. Further hearing was adjourned to 18th November, 1998 where Mr. B.S. Nwankwo and F. O. A. Nwanosike replied for 2nd and 3rd respondents. Further hearing was adjourned to 9th December 1998 for reply on points of law. Mr Osuigwe replied on points of law in the presence of Mr. B. S. Nwankwo for 2nd and 3rd respondents. The learned trial Judge gave his ruling on 19th February, 1999.
Where lies the claim of Mr. B. S. Nwankwo that the chambers of Dr. J. C.lkenga Metuh was not served? When Mr. Osuigwe claimed on 7th October, 1998 that the chambers of Dr. J. C. Ikenga Metuh was served, why did he not raise an objection to the effect that there was a misrepresentation by Mr. Osuigwe? After all, he was in court.
A more fundamental aspect is that he held the brief of Dr. J. C. Ikenga M-etuh on 4th November, 1998 is Mr. B. S. Nwankwo trying to give this court the impression that he held the brief for counsel who was not served? And if so, did he inform the court that he was doing so in protest? Came 18th November, 1998 and the same B. S. Nwankwo appeared for 2nd and 3rd respondents. Again, is Mr. B. S. Nwankwo trying to give this court the impression that he appeared for the 3rd respondent who was not served? And if so, did he inform the court that he was doing so in protest?
While counsel has all the right in law to handle his client’s case to the best of his professional ability, he has not the right to mislead the court, and deliberately too for that matter. It is rather sad that learned counsel for the appellants decided to mislead the court in the way he did, all in his effort to win this appeal. That is not the best advocacy. I do not want to say more. Issue (d) fails and I so hold.
I should now take issue (a), learned counsel for the appellants formulated three principles on issue (a), principles which I had earlier produced. He then submitted that the same principles guide the test whether an order is final or interlocutory. With the greatest respect, I do not agree with him. The institution or commencement of an action on fundamental rights arising from another action already in court cannot be based on the principles governing whether an order is final or interlocutory. In my opinion, a person is entitled to enforce his fundamental rights at anytime and irrespective of whether it is, in the words of learned counsel, “main or principal cause of action or fundamental issue before the court.”
The Constitution of the Federal Republic of Nigeria, 1979, which was in operation at the material time, clearly provided for the right of action in respect of breach or threatened breach of fundamental rights.
Section 42 (1) of that Constitution provided thus:
“Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that State for redress.”
Order 1 rule 2(1) of fundamental Rights (Enforcement Procedure) Rules 1979 contains similar provision in the following words:
“Any person who alleges that any of the Fundamental Rights provided for in the Constitution and to which he is entitled, has been, is being, or is likely to be infringed may, apply to the court in the state where the infringement occurs or is likely to occur, for redress.”
The above are very clear provisions which a person can enforce where he feels that his fundamental right is contravened or being or likely to be contravened. See generally Archbishop Oligis and others v. The Attorney-General of Lagos State (1981) 1 NCLR 218; Momoh v. Senate of the National Assembly and other (1981) 1 NCLR 21; Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387; Uzoukwu v. Ezeonu II (1991) 6 NWLR (Pt.200) 708; Lekwot v. Judicial Tribunal (1993) 2 NWLR (Pt.276) 410; Peterside v. I.M.E. (Nig) Ltd. (1993) 2 NWLR (Pt.278) 712.
The right sought to be enforced and was enforced was provided in section 32 of the 1979 Constitution. Section 32(1) provides in part:
“Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law…”
The Constitution of the Federal Republic of Nigeria or any other constitution did not provide that the right of an individual to enforce his fundamental rights depends on a consideration whether the right breached is the “main or principal cause of action or fundamental issue before the court.” A fundamental right is fundamental because it is basal, primary, essential and important. It can be enforced at anytime and all that an applicant can show is that he has the locus standi in the sense that his fundamental right has been contravened or being contravened or likely to be contravened.
Learned counsel argued that the respondent ought to have commenced his action on tort and by virtue of sections 121 and 122 of the Torts Law of Anambra State. If the law provides a plaintiff or applicant alternative remedies, he is entitled to make a choice. In this appeal, the respondent rightly, in my view, exercised his choice by resorting to the constitutional provision of section 42 of the 1979 Constitution. The reason for his choice is obvious and I need not go into that. I entirely agree with learned counsel for the respondent that the case cited by learned counsel for the appellants on Issue (a) are not relevant to his case. The issue therefore fails.
I now take Issue (b). Both parties agree that the respondent was arrested and detained for a period of seven hours. The issue which is in dispute is whether the cheque issued by the respondent bounced or capable of bouncing. To appellants’ counsel, the cheque bounced. To respondent’s counsel, the cheque was issued as a security and could therefore not have bounced. He submitted at page 5 of his brief as follows:
“The cheque was not issued in repayment of the loan or any part of it but as a security. If the applicant had the money in his account he would not have applied for a loan from the bank.”
The parties also joined issued in respect of the cheque for N350,000.00 issued by the respondent. The respondent deposed in paragraph 3 of his affidavit in support of the motion:
“That on the 11th day of September, 1997, I was arrested by the Nigeria Police from the central Police Station Nnewi on a charge of dud cheque which i issued to Obiora Ejiofor Manager Anuka Community Bank Nigeria Ltd”
In paragraph 19 of the counter-affidavit, Obiora Ejiofor deposed as follows:
“The said cheque of N350,000.00 (Three hundred and fifty thousand naira Only) was returned unpaid therefore bounced. This is a criminal offence and was promptly reported to the police (see attached cheque as Annexure 1) and the D.P.O agreed to investigate the matter and to arbitrate between Mr. Olua and the Bank.”
In paragraph 15 of the further affidavit, the respondent further deposed in these words:
“Paragraph 19 is a matter within the personal knowledge of the 4th respondent only. I gave him the U.B.A. cheque on trust as a friend based on his promise not to schedule the cheque for payment and he held the cheque for four months and during this period, I made frantic effort to see that I repaid the overdraft within six months duration and by the time he scheduled the U.B.A. cheque for payment I had already paid in N280,000 into Anuka Bank Ltd.
Learned counsel for the appellants relied on paragraph 3 of the affidavit in support and submitted that the respondent by that paragraph did not dispute that the cheque bounced. With respect, I do not agree with him. Paragraph 3 merely stated a fact in respect of the event of arrest and not an admission on the part of the respondent that he issued a dud cheque. The paragraph merely deposed to the reason adduced by the police for arresting the respondent and not an admission on his part that he issued a dud cheque.
Although there is no unequivocal deposition on the part of the respondent that the cheque he issued did not bounce, paragraph 15 of the further affidavit is to the effect that at the time the cheque was scheduled for payment, the respondent had paid the sum of N280,000.00. And so there is a dispute as the parties joined issues in their affidavits as to whether the U.B.A. cheque for N350,000.00 bounced or not.
How did the learned trial Judge resolve the dispute? He did not make any effort to resolve the dispute? He rather came to the conclusion that the respondent paid the sum of N280,000.00 and that it was “quite unreasonable, in fact, treacherous for the 2nd and 3rd respondents to have presented the cheque for payment of N350,000.00 out of which sum they had received N280,000.00 from the applicant.”
It is trite law that conflicting affidavit evidence should be resolved by oral evidence unless there exists documentary evidence capable of resolving the conflict. See Garba v. University of Maiduguri (1986) 1 NWLR (Pt.18) 550; Din v. Attorney-General of Federation (1986) 1 NWLR (Pt.17) 471; Faluyi v. Oderinde (1987) 4 NWLR (Pt. 64) 155; Atanda v. Olanrewaju (1988) 4 NWLR (Pt.89) 394; David Osuagwu v. Attorney-General of Anambra State (1993) 4 NWLR (Pt.285) 13; Mbadugha v. Nwosu (1993) 9 NWLR (Pt.315) 110.
Similarly, a Judge need not call oral evidence to resolve conflicting affidavit evidence if the conflict is so notorious that the Judge by resorting to his wisdom in everyday life can take a position. For instance, where an affidavit in support deposes that a particular event occurred or took place on Christmas day 25th December, and the counter-affidavit deposes that the event occurred or took place on 27th December, which was the Christmas day, and not 25th December, a Judge need not call oral evidence.
So too where an affidavit in support deposes that February is the sixth month of the year and the counter-affidavit deposes that February is the second month of the year:
Where facts are peculiarly within the knowledge of the deponent, as in the present case, a Judge should order for an oral hearing on the disputed facts. I have no difficulty in arriving at the conclusion that the issue in dispute neither had the backing or support of documentary evidence nor acquired notoriety to dispense with oral evidence.
This is a big slur or set back on the case of the respondent, a situation created by the court, for which he is not responsible. Unfortunately, the law cannot, in my opinion come to his aid. Rules of court must to be obeyed if the judicial process must triumph to the egalitarian advantage of both parties in the litigation.
In the light of the conclusion I have reached in respect of the Judge failure to resolve the conflicting affidavit evidence, I need not take the other issues. The appeal is allowed. I award N3,000.00 costs in favour of the appellants.
Other Citations: (2000)LCN/0864(CA)
