First Bank of Nigeria Plc. V. Chief M. A. Akande & Ors. (1997)
LawGlobal-Hub Lead Judgment Report
MUHAMMAD, J.C.A.
This is an appeal by the Defendant/Appellant against the judgment of Ade Alabi, J. sitting at the Lagos High Court, delivered on the 4th day of December, 1992 which granted all the reliefs sought by the Plaintiff/Respondent. The facts that led to this appeal are as follows:-
On 27/9/88 the respondent purchased from the appellant bank US $144 (One hundred and forty four United States Dollars). He paid N851.65 for the purchase. He was issued with a purchase receipt which contained the serial numbers of the currency notes sold to him. The respondent then departed Nigeria in the night of 27/9/88 and arrived at Zurich Airport in the morning of 28/9/88. At Zurich Airport, according to the respondent, he offered one $20 note to the cashier of a bank in the arrival hall of Zurich airport. The cashier looked at the note and told the respondent that the note was fake. The cashier then made some telephone calls. A few minutes later, the Police arrived and whisked away the respondent in their van to the Police Station. The respondent testified that the Police found the remaining Dollar Notes he was carrying which they declared fake except $4 which they said were genuine. At the Police Station, the respondent was grossly ill treated and subjected to various types of indignities. As a result the respondent sued the appellants claiming the sum of N20,000,000.00 (Twenty million naira) as aggravated damages and the sum of N625,951.60 as special damages. He also sought for an order directing the appellant to acknowledge in writing to the KANTONS POLIZEI Zurich that it sold the $140 to the “‘respondent and absolving the respondent from blame whatsoever. He further, sought for an order directing the appellant to apologies in writing to the respondent.
The appellant denied all the respondent’s claim. The appellant alleged that they purchased the said currency notes from the Nigeria Police. The appellant therefore filed a third party notice, claiming indemnity against the third party in respect of the respondent’s claim. The appellant maintained that the currency notes they purchased from the Nigeria Police, which they sold to the respondent, were genuine. Before the said Nigeria Police, the notes were tested and they were found to be genuine.
At the trial, three witnesses testified on behalf of the respondent, including the respondent himself, while the appellant called one witness. In his judgment, the learned trial judge held that the respondent’s action succeeded. He accordingly entered judgment in favour of the respondent in the sum of N750,851.61 with N2,000 costs in favour of the respondent. The trial judge stated:- “I do not believe the evidence of “DW1” to the effect that the American Dollars the Defendants sold to the Plaintiff were very genuine. He was not telling the court the truth. He was out to mislead the court to protect not only his employers but also himself and his job having been directly involved in the transaction of sale of the fake and counterfeit United State Dollars.
The trial judge then held that the respondent was entitled to the award of aggravated damages and stated:-
“In the light of the above, I award aggravated damages in favour of the Plaintiff assessed at Seven hundred and fifty thousand Naira. In addition I believe that the Plaintiff is also entitled to a letter of apology as claimed and I hereby direct accordingly.”
The Defendant/Appellant being dissatisfied with this decision has appealed to this Court on the following grounds of appeal:-
(1) The learned trial judge erred in law in awarding aggravated damages to the Plaintiff.
Particulars of error
a) There was no pleading on the part of the Plaintiff of any behaviour of the Defendant in aggravation of damages.
b) . There was no proof of any behaviour of the Defendant which could have justified an award of aggravated damages.
c) The injured feelings and embarrassment alleged and held as proved by the Plaintiff are the consequences of the alleged negligence of the Defendant. The Defendant had not been shown to have done any other act in excess of its alleged negligence to aggravate the damages occasioned by the negligence.
d) Negligence does not fall within the group of tortuous claims for which aggravated damages is normally awarded.
(ii) The decision of the learned trial judge that the Plaintiff had proved beyond reasonable doubt that the currency sold by the Defendant was counterfeit was against the weight of evidence.
(iii) The decision of the learned trial judge that the plaintiff’s evidence in proof of his alleged arrest and detention was uncontroverted and unchallenged was against the weight of evidence as the learned trial judge did not give full consideration to the inconsistencies and contradictions revealed in the Plaintiff’s testimony by cross-examination.
(iv) The award of N750,000 as aggravated damages was excessive and erroneous in that the learned trial judge failed to take into consideration factors relevant to the circumstances of the alleged wrong and also the lack of proof of any consequence of alleged shame and embarrassment of the Plaintiff and whether the Plaintiff had any international reputation which was affected.
(v) The learned trial judge erred in law in failing to give judgment on the Defendant’s claim under the third party notice.
Particulars of Error
a) The learned trial judge had dealt with the third party notice in his judgment in holding that the third party was bound by the Statement of Defence and by the decision of the Court in the Suit.
b) The learned trial judge however failed to make any decision regarding the Defendant’s claim for indemnity against the Third Party under the third party notice, which he ought to have done.
c) Having dealt with the third party notice without reaching a decision on the claim thereunder the third party notice cannot be further tried separately after the pronouncement of the judgment herein.”
Briefs of argument were subsequently filed and exchanged. The appellant formulated four issues for determination. They are:-
“1. Whether the Plaintiff has proved beyond reasonable doubt the allegation that $140 in American currency notes sold to it (sic) by the Defendant/Appellant were counterfeit.
- Whether the Plaintiff was entitled to the award of aggravated damages in this suit.
- Even if Plaintiff was entitled to an award of aggravated damages, whether the Plaintiff actually suffered any significant injury to his feelings of self esteem as to warrant the quantum of the award made.
- Whether the third party notice has been satisfactorily dealt with by the learned trial judge.”
The respondent in his brief identified three issues for determination in the appeal. The issues formulated by the respondent are similar to those formulated by the appellant. There is no need to reproduce them. I will adopt the issues formulated by the appellant as the issues for determination in this appeal.
I will now consider the first issue i.e. whether or not the plaintiff has proved beyond reasonable doubt that the American Dollars sold to him by the appellants were counterfeit. Selling counterfeit currency is a crime as rightly held by the trial judge. Since there is an allegation of crime against the appellant, the respondent is bound to prove the allegation beyond reasonable doubt. Section 138 of the Evidence Act Cap 112 Laws of the Federation of Nigeria provides:- “138(1) If the commission of crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provisions of Section 140 on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.”
From the above quoted provision, it is clear that where a person asserts the commission of a crime in any civil proceeding, where the criminal act is directly in issue, that person must prove the commission of that crime beyond reasonable doubt. See Benson Ikoku Vs. Enoch Oli (1962) 1 SCNLR 307. See also Nwobodo Vs. Onoh (1984) 1 SCNLR 1 where the Supreme Court considered the above provision and stated at page 4 that the Rule in Civil proceeding is subject to the principle of Severance of pleadings. This principle is to the effect that if after severing the allegation of crime from the body of pleadings, there still remain enough averments upon which the plaintiff can still rely to prove his case then the a burden on the plaintiff in order to succeed, is one of balance of probability. What this means in effect is that if the allegation of crime is severed from the body of the Statement of Claim, would there still remains enough averments upon which the plaintiff would not require to prove this case? If that is so, the Plaintiff would not require to prove the case beyond reasonable doubt, it will be enough if he succeeds in proving his case on balance of probability.”
I have carefully considered the pleadings in this matter. The respondent alleged that the appellant sold to him fake or counterfeit American dollars. The appellants have denied this allegation. It is clear that the commission of crime is directly in issue in this matter. It is also clear from the pleadings that the principle of severance cannot apply to this case. If the allegation of crime is severed from the body of the pleadings, there will not remain enough averments upon which the respondent could still rely and prove his case. I therefore hold that in order to succeed, the respondent must prove the allegation of crime beyond reasonable doubt.
The law is that once the Court is left in a state of doubt as to the guilt of the accused, the prosecution has not proved its case beyond reasonable doubt. In such a case, the accused should be given the benefit of doubt and be acquitted. See Ikhane Vs. C.O.P. (1977) 6 S.C. 119. The meaning and connotation of “proof beyond reasonable doubt” has been stated by the Supreme Court in the case of Akalezi Vs. the State (1993) 2 NWLR (Pt. 273) 1 as follows:-
“Proof beyond reasonable doubt is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of the evidence tendered by the prosecution. In the case of Miller Vs. Minister of Pension (1947) 2 All. E.R. 372, it was held that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence: “of course it is possible, but not in the least probable”, the case is proved beyond reasonable doubt.”
The learned trial judge before arriving at his decision relied heavily on the documentary evidence adduced before him. He also disbelieved the evidence of the only defence witness whom he said was out to mislead the court to protect not only his employers but also himself and his job.
The evidence before the court below is that the respondent bought $144 from the appellant. This is not in dispute. The appellant agreed that they sold the American dollar notes to the respondent. The respondent testified that he wanted to make a phone call at the arrival hall of the Zurich airport. He therefore went to a Bank to change one of the notes sold to him by the appellant. The bank cashier looked at the note and declared that the dollar note was fake. The cashier called the police and the respondent was arrested. The other notes sold to the respondent by the appellant, were also seized by the Zurich Police. They said the notes were also fake.
However, the appellant denied selling fake American dollars to the respondent. They maintained that the American dollars sold to the respondent were genuine. The appellant’s witness testified that they purchased the dollars from the Nigeria Police and that:-
“At the time we purchased the foreign exchange from the Police they were properly checked as to their genuiness. I personally checked them. As at 1988 I had been dealing with foreign exchange for 14 years. During that period, I saw counterfeit American Dollars I can easily identify one if I see it. To the best of my knowledge and from my experience the American Dollars we sold to the plaintiff were very genuine.”
This piece of evidence was not challenged. Indeed the witness was not cross examined on this issue.
It should be noted that there is no evidence that the bank cashier at Zurich airport tested the genuiness of the currency note with any machine. It was testified that he just looked at it. There was also no evidence that the Zurich Police subjected the dollar notes to any test either scientific or mechanical before concluding that the notes were counterfeit. The trial judge based his judgment on the documentary evidence. However, all these documents which he relied upon derive their assertion from the Zurich Police but there is nowhere in the plaintiff’s testimony nor in any of the documents relied upon by the trial judge that they discovered that the notes were counterfeit after conducting a scientific test or using a scientific instrument.
Considering the totality of the evidence adduced we can see that on the one side is the plaintiff’s testimony who testified that the cashier at Zurich Airport said the currency note was counterfeit. The Swiss Police also through the documents tendered declared the currency notes as counterfeit. On the other side, we have the evidence of DW1, a Bank Manager in Nigeria who testified that the currency notes were genuine. We also have the Nigeria Police who by virtue of the fact that they sold the currency notes to the appellant must have asserted that the currency notes were genuine. The Nigeria Police and a Nigerian Bank Manager assert that the currency notes were genuine while the Swiss Police and a Swiss Bank Cashier assert that the currency notes were counterfeit. It is my considered opinion that since the currency notes in question were neither Nigerian currency nor Swiss currency, the opinion of neither should be given preference over the other. This is so because the said currency notes were not forensically tested, either by the Nigeria Police or the Swiss Police. The currency notes were also not tendered in evidence before the lower court.
Since the currency notes were not tendered before the court and no forensic test was conducted to establish whether or not the currency notes were counterfeit and in view of the conflicting evidence adduced by the two sides, I am of the view that the plaintiff has failed to prove his case beyond reasonable doubt. There is nothing to make the trial judge prefer the evidence adduced by the respondent to that of the appellant.
Since the respondent made an allegation of crime against the appellant, the standard of proof required is proof beyond reasonable doubt. This the respondent has failed to do. My answer to the first issue for determination is therefore in the negative. The first issue is the main issue in this appeal. The other three issues are ancillary to the first issue. Since I have come to the conclusion that the respondent did not prove beyond reasonable doubt the allegation that the $140 sold to him by the appellant were counterfeit, this has effectively disposed of the appeal. There is no need to consider the remaining issues.
In the circumstance the appeal succeeds and it is hereby allowed. The judgment of the Court below is set aside. I make no order as to costs.
Other Citations: (1997)LCN/0336(CA)
