New Improved Manibannc Ventures Ltd. V. First Bank of Nigeria Plc. (2009)
LawGlobal-Hub Lead Judgment Report
JEAN OMOKRI, J.C.A.
On 14/3/05 the plaintiff/appellant commenced Suit No. HC/114/05 by writ of summons against the defendant/respondent in the High Court of Cross River State sitting in Calabar. By a statement of claim filed on 14/3/05 and attached to the writ of summons, the appellant claimed as follows:
“For Negligence and Conversion
- PARTICULARS OF SPECIAL DAMAGES
(a) The sum of one thousand, one hundred and eighteen U. S. Dollars (1118) being the value of the cheque/draft lodged with the defendant Calabar Main Branch.
(b) Thirty per cent (30%) interest rate per month of the value of the cheque/draft from the month of March, 2004, till judgment is delivered on compound interest.
(c) Thirty per cent (30%) per month on the judgment sum till the entire sum is liquidated.
(d) N40,000 as the cost of litigation as was the agreement between the plaintiff and Dr. Mogu.
- General damages of Two Million Naira (N2,000,000.00)only.”
The appellant, a customer to the respondent, on 4th November, 2003 lodged a foreign cheque/draft into its account at the Calabar Main Branch of the respondent. The cheque/draft which was issued by the First National Bank of Swaziland Ltd. was thereafter processed and sent on clearing to the issuing bank to enable the respondent to receive proceeds/value for the credit of the plaintiff’s account.
While the proceeds of the cheque/draft was being awaited in the course of clearing, the appellant through its Managing Director (PW1 in the trial court) variously visited and enquired from the Branch Manager of the respondent at Calabar Main Branch for the proceeds of the draft. At each of such visits, the said Manager explained to the appellant that it had not yet received the value of the cheque/draft from the issuing bank in Swaziland as a result of which the plaintiff’s account could not be credited.
When it however appeared that the cheque/draft was taking a long time to be cleared, the respondent wrote to the appellant on 13/8/04 and requested the appellant to obtain a replacement cheque/draft to enable the respondent to secure value/proceeds for the appellant’s credit since the initial draft was then presumed lost. The request which was in consonance with recognized diligent banking practice was however turned down by the appellant. Appellant thereby commenced this suit against the respondent as per the aforestated claims. The respondent filed its statement of defence on 5th August, 2005 and denied liability.
At the trial, both parties called one witness each, tendered exhibits in proof of their respective case and finally filed written addresses. The appellant abandoned its claim on conversion of the value of the draft on the part of the respondent as no evidence was led in proof of same. In his judgment delivered on 16th of April, 2007 the learned trial Judge dismissed the appellant’s claims on the basis that the appellant had woefully failed to prove conversion of the proceeds of the draft as well as negligence on the part of the respondent.
Aggrieved by the judgment of the trial court, the appellant appealed to this court on two grounds on the 9/5/07. Subsequently, the appellant, by a motion on notice dated and filed on 13/11/08 applied for leave to amend his notice of appeal which was granted. The two grounds in the amended notice of appeal are as follows:
“Grounds of Appeal
Ground 1: The learned trial Judge erred in law when he dismissed the suit despite the admission of the defendant/respondent of receiving the draft the subject matter of the suit. Ground 2: The judgment of the learned trial Judge is against the weight of evidence.”
From the two grounds of appeal, the appellant distilled one issue for determination in his brief of argument dated and filed on 14/12/07 but deemed properly filed and served by this court on 3/3/08.
The issue for determination is as follows:
“Whether the trial court was right to dismiss the suit on the ground that the appellant has not proved negligence in spite of the fact that the respondent acknowledged receiving the draft/cheque and cannot account or provide justifications for the unreasonable delay and failure to credit the appellant.”
The respondent in its brief dated 24/1/08 and filed on 25/1/08 but deemed properly filed and served by this court on 18/2/09 raised and argued five grounds of preliminary objection to the appeal pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2007, at pages 2 – 4 of the said brief. In the alternative, the respondent at page 5 of its brief distilled one issue for determination, which is as follows:
“Whether the trial court was right when it dismissed the appellant’s suit on the basis that negligence was not proved against the respondent in its dealing with the appellant’s draft.”
I observed that the appellant did not deem it fit or necessary to file a reply brief in response to the Preliminary Objection raised by the respondent and in fact it did not file any. I shall return to this issue anon.
Learned counsel for the appellant, Mr. C. O. Ukaegbu, summarized the evidence adduced by the appellant before the trial court and submitted that a plaintiff in a case of tort of negligence, must prove:
(a) That the defendant owes him a duty of care.
(b) That the defendant acted in breach of that duty.
(c) That he suffered resultant damages.
He relied on Hanseatic Int. Ltd. vs. Usang (2002) 13 NWLR (Pt. 784) 376 at 383 and Agbanelo vs. Union Bank Plc. (2000) 2 NSCQLR, 415 at 430, and submitted that the respondent as the appellant’s bank owes a duty of care to the appellant with regard to the handling of its affairs as a customer of the respondent’s bank.
Counsel contended that the respondent breached the duty by failing to credit the appellant and failing also to give any explanations within a reasonable time as to why the appellant could not be credited. Counsel argued that, without making any efforts to find out from the issuing bank, the respondent resorted to assumptions that the draft was lost and then requested for replacement as a way of avoiding responsibility for their negligence, knowing too well that it was difficult and the cheque/draft cannot be replaced.
Further, that the respondent owes the appellant the duty to find out why the cheque had not been cleared and inform the appellant on time as to the next step to follow.
According to Mr. Ukagbue, the appellant’s pleadings and the exhibits tendered showed unreasonable lapse of time between when the draft was lodged and when replacement was called for and the particulars of the negligence are also contained in the appellant’s statement of claim.
Learned counsel contended that the trial Judge was wrong when he held that the appellant (as plaintiff) did not adduce evidence in support of its pleading that a Foreign Cheque must be paid within three months or returned to the lodger. In spite the fact that the respondent, while giving evidence had admitted that any cheque (including a foreign cheque) which is not honoured within a given period cannot be honoured again. He submitted that where there is a weakness in the defendant’s case which materially strengthens the case or the plaintiff, the plaintiff can rely on it in proof of the ingredients of the plaintiff’s case. He referred to ILGPC Ltd. vs. Kunade (2005) 1 WRN 131 at 134 and Nimanteks Associate vs. Marco Construction Co. Ltd. (1991) 2 NWLR (Pt. 174) 411 at 416.
On whether the appellant suffered damages due to the respondent’s negligence, counsel submitted that the appellant suffered losses due to the respondent’s negligence in handling the transactions. He pointed out that the appellant carries on a money lending business and the cheque was meant for defraying the indebtedness of Dr. Mogu to the appellant. The money which constitutes part of the capital for the appellant’s business was tied down unduly, thereby depriving the appellant not only of money but also of the interest that would have accrued on it. He concluded that the appellant having established, and proved all the ingredients of negligence, this court should allow the appeal and set aside the judgment of the lower court.
Learned counsel for the respondent, Mr. Alex Umoh, argued the Preliminary Objection. In ground 1, counsel argued that no proper notice of appeal have been filed because a proper notice of appeal must among other things specify the judgment appealed against and the date of such judgment.
Counsel pointed out that in the instant appeal, the judgment recorded at pages 85 – 90 of the record of this appeal was delivered by the learned trial Judge on 16/4/07. But on the contrary the notice of appeal filed by the appellant on 7/5/07, at page 91 of the record, relates to the judgment delivered dated 9/4/07. Therefore, there is a fundamental defect in the notice of appeal which clearly robs this court of its jurisdiction to entertain this appeal. Relying on Jang vs. INEC (2004) All FWLR (Pt.200) 1546 at 1575, counsel submitted that where the notice of appeal against a judgment or ruling said to have been given on a certain state but not borne out by the record, the appeal must be taken as misconceived and accordingly struck out.
Learned counsel in arguing grounds (ii), (iii) and (iv) together submitted that ground one of the notice of appeal complains of an error in law without stating clearly, the particulars of such error which particulars must be relevant to the ratio of the decision complained against. Counsel relied on Order 6 Rule 2(2) ‘of the Court of Appeal Rules, 2007; A. S. E. A. vs. Ekwenem (2001) FWLR (Pt. 51) 2034 at 2066; Nwagwugwu vs. President, FRN (2007) All FWLR (Pt.358) 1151 at 1163 and Khalil vs. Yar’ Adua (2004) All FWLR (Pt. 225) 111 at 137, and urged the court to strike out ground one of the notice of appeal. In the alternative, counsel contended that ground one is incompetent because it is at best or mixed law and fact and can only be argued on appeal, with prior leave of this court. He relied on Yamusa vs. Aromed (2001) FWLR (Pt. 74) 328 at 333, and submitted that in the instant appeal no leave was sought and obtained, therefore, this court is urged to strike out ground one.
In ground (v), counsel contended that in the instant appeal, there is no ground of appeal challenging the finding of the trial court to the effect that negligence was not proved and there is no ground challenging the finding that there was no unreasonable time lapse between when the draft was lodged and when the respondent wrote to the appellant for a replacement draft.
Counsel argued that the appellant has so expansively formulated its lone issue and unduly extended same to cover the findings aforesaid. Moreover, an issue for determination which does not derive its support from the ground of appeal cannot exist independent of the ground of appeal. He referred to Dantata vs. Mohammed (2000) FWLR (Pt. 21) 889 at 922 and Bayero vs. Mainasara & Sons Ltd. (2007) All FWLR (Pt. 359) 1285 at 1308, and urged the court to uphold the preliminary objection and strike out this appeal.
In the respondent’s Issue NO.1 which was formulated in the alternative, in case the Preliminary Objection is overruled, Mr. Umoh submitted that in an action for negligence the plaintiff (in this case the appellant) must prove that the defendant (respondent) owed him a duty of care and that he suffered damages in consequence. He relied on Igbinovia vs. Agbonifo (2002) FWLR (Pt. 103) 505 at 512 and 514 and UBN Plc. vs. Emole (2002) FWLR (Pt. 88) 845 at 856, He pointed out that though, the appellant in paragraph 21 of the statement of claim, at page 6 of the record, it failed to prove the said particulars of negligence by evidence at the trial where the trial court held at page 89, lines 8 – 10, that beyond the pleading and the ipsi dixit of the appellant no evidence was led to prove negligence on the part of the respondent. Counsel referred to the evidence of PW1, Mr. Okoro, who testified under cross-examination that it was the responsibility of the respondent to send the cheque for clearing and that each time he went to enquire about the cheque, the respondent told him that value for the cheque was not received from First National Bank of Swaziland, the issuing bank whose duty was to clear the cheque. DW1, Mr. Effiong, also confirmed that the cheque was sent to First National Bank of Swaziland for value but the respondent never received value. He then submitted that the respondent had dutifully discharged its duty of care, particularly so when the evidence of the respondent on this issues was uncontradicted. He referred to Ikono L. G. vs. De Beacon Finance & Sec. Ltd. (2002) FWLR (Pt. 114) 415 at 417 and the findings of the trial court at pages 89, lines 6 – 10, 20 – 22 of the record and concluded that the findings and conclusion that the appellant failed to prove negligence on the part of the respondent. Trial court in the instant appeal are proper, reasonable and supported by evidence. Therefore, this court cannot interfere with the findings since they are not perversed and have not occasioned any miscarriage of justice as it was held in Charlie vs. Gudi (2007) All FWLR (Pt. 362) 1992 at 2010.
On the issue of whether there was an unreasonable lapse of time between when the cheque was lodged and when the respondent gave an explanation on why the appellant’s account could be credited with the value of the draft, counsel submitted that there was no lapse of time, because PW1, testified that he met with the respondent’s branch manager severally to inquire of why the appellant’s account was not credited after the draft was lodged in the account, PW1 testified further that at each of such meetings, the respondent advised the appellant to exercise patience pending when the proceeds/value of the draft would be received! He also referred to paragraph 11 of the statement of claim and paragraphs 7(a), (c) and 9 of the statement of defence and the court’s findings at page 87, lines 14 – 22 and page 88, lines 18 – 20 of the record in support of his submission.
On the question of whether it takes three months to clear a foreign cheque, learned counsel submitted that the appellant did not adduce any evidence in support of the fact which he pleaded in paragraph 15 of the statement of claim, therefore, it must be deemed abandoned. On the other hand, the respondent maintained strongly and consistently that there is no time limit for clearing a foreign cheque and that Exhibit J was written by the respondent when the instrument was presumed lost.
On the allegation of the appellant that the cheque has been cleared because the account of Dr. Mogu has been debited, learned counsel submitted that the allegation is not supported by the appellant’s pleadings or evidence adduced in court. There is no evidence that the cheque was lost while in the possession of the respondent. Counsel relying on the cases of Walter vs. Sky (Nig.) Ltd. (2000) FWLR (Pt. 13) 2270 at 2248; Lawson Afani Continental Co: Nig. Ltd. (2002) FWLR (Pt. 109)1736 and 1766; Idesoh vs. Ordia (1977) 2 SC 175; Chindo Worldwide Ltd. vs. Total Nig. Plc. (2002) FWLR (Pt.115) 750 at 769; and Khawami vs. Akinkugbe (2002) FWLR (Pt.109) 1574 at 1586, submitted that the burden placed on the appellant under sections 135 and 137 of the Evidence Act, 1990, have not been discharged and the trial Judge was right in his findings that the respondent failed to prove his claim and in dismissing the claim. Mr. Umoh alluded to the 30% per month interest and urged the court to discountenanced it and dismiss the appeal.
It is trite that where a preliminary objection is raised in respect of the competence of an appeal, the jurisdiction of the court to entertain the appeal becomes an issue. In the circumstances, it is the fundamental duty of the court to consider, determine or resolve the preliminary objection first before delving into the merits or substance of the appeal. It does not matter whether the objection is frivolous or not. See UBA Plc. vs. ACB Nig. Ltd. (2005) 12 NWLR (Pt.939) 232; Tiza vs. Begha (2005) 15 NWLR (Pt. 949) 616; Intergrated Builders vs. Domzay Vent. Nig. Ltd. (2005) 2 NWLR (Pt. 909) 97 and Buhari vs. Obasanjo (2005) 13 NWLR (Pt.941) 1. This is because, where the preliminary objection is upheld, that is the end of the matter before the court especially where the challenge is against the competence and jurisdiction of the court. The advantage of this is that it saves time and energy. See ANPP vs. R.O.A.S.S.N. (2005) 6 NWLR (Pt. 920) 140 at 170 -171.
In Moseba vs. Abubakar (2005) 6 NWLR (Pt. 922) 410 at 470, this court per Muktar, JCA, held that:
“Once a preliminary objection to an appeal succeeds there would be no need to go further to consider the arguments in respect of the issues formulated for determination.”
See also NEPA vs. Ango (2001) 15 NWLR (Pt. 737) 627. I am therefore obliged to consider and determine the issue raised in the preliminary objection now.
To begin with, I have earlier observed and pointed out in this judgment that even though the appellant was duly served with the respondent’s brief of argument containing the preliminary objection, it did not file an appellant’s reply brief to respond or to react to the objection as envisaged under Order 10 Rule 5 of the Court of Appeal Rules, 2007. Ordinarily, that would mean that the appellant has admitted the preliminary objection. See ANPP vs. R.O.A.S.S.N. (supra). However, out of abundance of caution and in the interest of justice and fairness, I shall deal with issues raised in the preliminary objection despite the fact that the appellant failed to file a reply brief. See Okumodi vs. Sowunmi (2004) 2 NWLR (Pt. 856) 1 at 18 – 19.
The grounds of objection in the preliminary objection are:
(i) The appeal is incompetent and the Court of Appeal lacks the jurisdiction to entertain the appeal.
(ii) Ground 1 of the notice of appeal is without particulars or proper particulars.
(iii) Ground 1 of the notice of appeal is incompetent. It does not relate to and constitute a challenge to the ratio of the decision on appeal.
(iv) Ground one of the notice of appeal is at best on mixed law and fact. No prior leave of court was obtained to argue it.
(v) Issue No. 1 (the lone issue) formulated by the appellant in this appeal is incompetent. It does not arise from any ground of appeal. There is no ground of appeal challenging the specific finding of the trial court to the effect that the appellant had failed to prove negligence.
Ground 1 of the preliminary objection is predicated on the fact that the original notice of appeal filed on 1/5/07, the appellant referred to the judgment of the lower court delivered on 9/4/07 whereas the judgment was delivered on 16/4/07. Learned counsel then submitted that the date, 9/4/07, in the notice of appeal is not referable to the judgment purportedly appealed against. Having carefully perused the record, I observed that the appellant filed an application to amend its notice of appeal on the 13/11/08 which was granted by this court same day. In the amended notice of appeal the date on which the judgment of the trial court appealed against is correctly stated, that is to say 16/4/07.
Consequently, ground 1 of the preliminary objection has been overtaken by events and it is otiose and of no moment. Ground 1 of the preliminary objection fails.
Grounds II, III and IV of the preliminary objection were argued together by the respondent in its brief. The main issue here is that the appellant did not give particulars of error in law, under ground 1 in the notice of appeal. The ground of appeal No.1 clearly and unambiguously embodied the particulars of the error in law and it is framed in such a manner as to leave the court and the parties in no doubt regarding the error in law complained about. In my considered view, ground 1 reflects the error in law clearly and succinctly so much so that it is easy for the court and the respondent to appreciate the nature and purport of the complaint being made against the judgment appealed against and so prevent any element of surprise. In Ilori vs. Tella (2006) 18 NWLR (Pt. 1011) 267 at 284 – 285, Fabiyi, JCA, (as he then was), in his usual erudity stated the current position of the law, when he said that:
“It is no longer the law that once a ground of appeal alleges error in law and or misdirection the passage of the judgment concerning same must be quoted.”
In Ukpong vs. Commissioner for Finance (2006) 19 NWLR (Pt. 1013) 187, Onnoghen, JSC, robustly stated the current position of the law as follows:
“Although an appellant is required to give particulars of error(s) of law, it is not every failure to do so that will render the ground so couched incompetent, particularly where sufficient particulars can be gleaned from the ground of appeal in question and the respondent and the court are left in no doubt as to the particulars on which the ground is based.”
See further Koya vs. UBA (1997) 11 NWLR (Pt. 481) 251 and Ashiru vs. Ayoade (2008) 6 NWLR (Pt. 976) 405 at 421 – 422.
The other key issue in the preliminary objection, is that ground one, is at best one of mixed law and fact and can only be argued on appeal with a prior leave of the Court of appeal. It is settled that the right of appeal is statutory. In the instant case on appeal, the right of appeal from the High Court to the Court of Appeal is prescribed under section 241 of the 1999 Constitution. Now, section 241(1) (a) of the 1999 Constitution provides as follows:
“An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:
(a) Final decisions in any civil or criminal proceedings before the Federal High Court of High Court sitting at first instance…”
The instant case on appeal is from a final decision of the High Court of Cross River State, sitting at first instance, therefore, the appellant is entitled to appeal as of right, so it does not matter whether the ground(s) of appeal is of mixed fact and law or not. The appellant does not require any leave of this court before he can appeal or argue the ground of appeal. Once it is clear on the face of the decision that it is final in nature and it emanated from the decision of the High Court sitting at first instance, an appeal lies as of right. See Maduabuchukwu vs. Maduabuchukwu (2006) 10 NWLR (Pt. 989) 475 at 492. That being the case, the submission of Mr. Umoh, is misconceived. Grounds II, III and IV are unmeritorious and they fail.
In respect of ground V, I am quite satisfied that the lone issue for determination is derivable from the grounds of appeal subscribed in the notice of appeal and it is not an undue and deliberate extension of issues to be agitated on appeal beyond the complain encompassed in the grounds of appeal. This ground of the preliminary objection fails. All the grounds of the preliminary objection having failed, it is hereby overruled and dismissed.
I have carefully examined and reflected on the issues for determination formulated by the parties in this appeal and I find that they are like the two sides of the same coin. In the circumstances, I shall rely on the lone issue formulated by the appellant in the determination of the instant appeal. The claim of the appellant before the trial court is firmly rooted in the tort of negligence. Before liability to pay damages for the tort of negligence can be established, the plaintiff (in this case, the appellant) must prove that:
(a) the defendant owed him a duty to exercise due care;
(b) the defendant failed to exercise due care; and
(c) the defendant’s failure to exercise care was the cause of the injury to the plaintiff.
See Osigwe vs. Unipetrol (2005) 5 NWLR (Pt. 918) 261 at 283; Koya vs. UBA Ltd. (1997) 1 NWLR (Pt. 481) 251.
It is the contention of Mr. Ukaegbu, that the respondent bank owed the appellant a duty with regard to the handling of its affairs as a customer of the respondent bank. Counsel submitted that the respondent breached the duty of care by failing to credit the appellant’s account and failing also to give any explanations within a reasonable time as to why the appellant’s account could not be credited.
From the averment of the appellant in paragraph 3 of the statement of claim at page 3 of the record and the evidence of PW1 at page 50 of the record, and the evidence of DW1 at page 52 of the record, it is clear that there is a customer/banker relationship between the appellant and the respondent.
It is settled law that a bank has a duty under its contract with its customer to exercise reasonable care and skill in carrying out its part with regard to operations within its contract with its customers. The duty to exercise reasonable care and skill extends over the whole range of banking business within the contract with the customer. Thus the respondent’s duty to exercise reasonable care and skill in regard to its customer’s affairs is undoubted. It is common ground that the appellant paid in a draft drawn on First National Bank of Swaziland Ltd. dated 23/10/03 for the sum of 1,118 (One Thousand, One Hundred and Eighteen United States Dollars). The draft was sent to the appellant by one Dr. Mogu in an effort to liquidate his indebtedness to the appellant. The said draft was lodged in the appellant’s account with the respondent in the Calabar main branch on 4/11/03. Subsequently, the appellant’s Managing Director kept on checking its account but found that the account was not credited and on several occasion he met with respondent’s branch Operation Manager to find out the reason why after about 4 months of lodging of the draft the account was not credited.
Now, PW1 himself testified that he went to the respondent on several occasion but the respondent told him that the cheque has not been cleared. The respondent in paragraphs 7(a), (b) and (c) of the statement of defence, which is at page 38 of the record and the evidence of DW1 at page 52, stated that the draft was sent for clearing through his Head Office which in turn sent it to the issuing bank. DW1 testified further that the respondent did not receive the proceeds of the draft from the issuing bank and the respondent informed the appellant to exercise patience because a foreign draft sent for clearing has no time limit. At page 53 of the record, DW1 stated that uptil the day he testified, the respondent had not received value for the appellant’s draft. So far there is no evidence that the respondent failed in its duty of care which it owed to the appellant. It is significant to note that the draft lodged with the respondent bank was a foreign draft from the First National Bank of Swaziland Ltd. and it is the bank which has the primary duty of giving value to the draft. Therefore, the respondent was duty bound to send the draft to First National Bank of Swaziland Ltd. for clearing before the value could be credited to the appellant upon receipt of the value. The appellant did not challenge or contradict the evidence of DW1 in this regard. Where a piece of evidence is unchallenged or uncontradicted such evidence will be accepted as proof of a fact it seeks to establish. See Otuedor vs. Olughor & Ors. (1997) 7 SCNJ 411; Omo vs. JSC, Delta State (2000) 10 NWLR (Pt. 682) 444; Gege vs. Nande (2006) 10 NWLR (Pt. 988) 256 and Ikono Local Govt. vs. De Beacon Finance & Securities Ltd. (2002) FWLR (Pt. 114) 415 at 417. From the foregoing, it is established and proved that the respondent dealt with the draft in accordance with normal banking practice and procedure.
On the other hand, the appellant did not prove by evidence, the breach of the duty of care owed to him by the respondent. See Igbinovia vs. Agbonifo (supra) and UBN Plc. vs. Emole (supra). The learned trial Judge was right when he held at page 89, lines 6 – 10 as follows:
“Throughout the evidence there is nothing tending the show what any of those agencies of the defendant did negligently with the Bank Cheque to give the plaintiff a cause of action against the defendant.”
Learned counsel for the appellant submitted that there was an unreasonable lapse of time between when the draft was lodged and when the respondent gave an explanation on why the appellant’s account could not be credited with the value of the draft and this amounted to a breach of the duty of care by the respondent. However, the evidence in the record is at variance with the submission of appellant’s counsel.
PW1, the appellant’s Managing Director, testified that he met severally with the respondent’s Operation Manager to ask why the appellant’s account was not credited after the draft was lodged into the account. PW1 also testified that at each meeting the respondent advised the appellant to exercise patience pending when the proceeds or value of the draft would be received.
It is clear as crystal, that the appellant was never kept in the dark. The appellant was perfectly aware of the situation of things.
For there to be an unreasonable lapse of time there must be a time frame, that is, a period of time stipulated for the happening of a particular event like the clearing of the foreign draft as in the instant appeal. The appellant pleaded in paragraph 15 of the statement of claim that it takes three months to clear a foreign draft. However, in his testimony PW1 failed to lead evidence on the facts stated in the said paragraph 15. See the evidence of PW1 from pages 46 – 51.
Pleadings do not amount to proof of the facts averred unless admitted by the opposite party. See Mbonu vs. Nigeria Mining Corporation (2006) 13 NWLR 659 at 691. The respondent on its part pleaded in paragraph 12 of the statement as follows:
“Paragraph 15 of the statement of claim is denied and strict proof of the content therein shall be required at the trial. The defendant denied that there is any fixed period to credit a foreign cheque which is sent for clearing as in this suit.”
In his evidence DW1 testified in support of the averment in paragraph 12 of the statement of defence and stated emphatically and consistently that there is no time limitation for clearing a foreign draft and that Exhibit J was written by the respondent when the draft was presumed lost. Certainly, the respondent having denied the averment of the appellant in paragraph 15 of the statement of claim, issues were joined between the parties. Therefore, the onus was on the appellant to prove that a period of three months was required to clear the draft and the appellant failed woefully to discharge the onus on it.
By section 137(2) of the Evidence Act, 1990, the burden of proof was on the appellant against who judgment would be given if no more evidence were adduced on the issue of time limitation for clearing of foreign draft. The learned trial Judge at page 88, lines 1 – 13 of the record held that:
“Again on this question of negligence based on lapse of time before the defendant wrote Exhibit “J” to the plaintiff pleaded at paragraph 15 of the statement of claim that if a foreign cheque is lodged in any bank, an account is credited within three months or the cheque is returned to the lodger. Beyond that pleading the plaintiff did nothing. No evidence was led in support of that averment. It was ‘rather the defendant who stated in evidence that foreign cheque sent for clearing has no time limit both in examination-in-chief and in cross-examination.”
I could not agree more with the learned trial Judge and in my considered view he correctly appraised the evidence of both parties and arrived at a correct decision.
A plaintiff (in this case the appellant) who fails to prove the particulars of negligence pleaded by him should have his claim for damages in tort dismissed. See UBN Plc. vs. Emole (supra) and Aemachi vs. A. L. C. (1986) 2 NWLR (Pt. 23) 443. It should be noted that negligence is a question of fact, not law. Consequently, each case must be decided in the light of its own facts. See Osigwe vs. Unipetrol (supra); Kalla vs. Jarmakani Transport Ltd. (1961) All NLR 747 and Ngilari vs. Mothercat (1999) 13 NWLR (Pt.636) 626. The appellant failed woefully to prove the particulars of negligence pleaded by it.
The appellant’s counsel also contended that the respondent should have shown what effort it made to follow up the draft before assuming that it was lost to avoid liability in negligence. See page 5, paragraph 2 of the appellant’s brief. It is not in dispute that the respondent pleaded in paragraph 14 of the statement of defence that when it became obvious that appellant’s draft might have been lost on the process of clearing, the respondent promptly advised the appellant in writing to obtain a replacement draft to enable the defendant to obtain the proceeds in order to credit the appellant’s account.
At this juncture, it is necessary that I draw attention to the fact that there is no evidence that the draft was cleared. There is no evidence that the account of Dr. Mogu, in whose favour the draft was raised, was debited. The respondent did not receive any advice from the First National Bank of Swaziland that the draft had been cleared. That being the case, it was reasonable to assume that the draft which was lodged with the respondent on 4/11/03 was lost. Indeed the respondent wrote a letter to that effect on 13/8/04. That letter is Exhibit J. In the circumstances, I cannot see where and how the respondent failed in its duty of care to the appellant. The appellant’s contention that the respondent made no effort to find out what happened to the draft is unwarranted and grossly speculative as it is unsupported by any evidence. In civil cases the burden of proving a particular fact is on the party asserting such a fact as averred in his pleading. See Walter vs. Skyll (Nig.) Ltd. (2000) FWLR (Pt. 13) 2270 at 2248. Apart from the bland allegation made by the appellant, no evidence was proffered in support of the allegation. By the provision of section 137(2) of the Evidence Act, 1990, there is no burden on the respondent. It is important to emphasize here that merely alleging that the respondent was negligent without more does not amount to proof.
In other to appreciate the scenario in the instant case on appeal, it is necessary to understand what clearing of a draft means. In Black’s Law Dictionary, 6th Edition, page 251, “Clearing” means:
“Method of making exchanges and settling balances, adopted among banks.” In this case all the respondent was obliged to do was to send the appellant’s draft for clearance. DW1, Mr. Nicholas Etim Effiong, testified at page 52 of the record that:
“The cheque was sent for clearing through our Head Office to the issuing bank, First National Bank of Swaziland for the value. The defendant never received any advice that the cheque has been cleared and thus could not credit the plaintiff’s account. The plaintiff was so informed. The defendant always advised the plaintiff to exercise patience until the value was received.”
The evidence of DW1 was not challenged, controverted nor contradicted. Therefore, the evidence of DW1 must be accepted and the court is obliged to act on it.
In Adeleke vs. Anike (2006) 16 NWLR (Pt. 1004) 131 at 171, Nzeako, JCA, held thus:
“An averment or evidence which is not challenged or controverted or denied stands and the court is obliged to accept and act on it with minimal evidence. This is because the law presumes that the opposite party admits the facts…” See also WAEC vs. Oshionebo (2006) 12 NWLR (Pt. 994) 258 at 272 – 273.
Now, the appellant was unable to prove negligence on the part of the respondent in the handling of the draft. I agree with the learned trial Judge when he held at page 89, lines 6 – 10 of the record as follows:
“Throughout the evidence there is nothing tending to show what any of those agencies of the defendant did negligently with the bank cheque to give the plaintiff a cause of action against the defendant.”
Obviously, it was the responsibility of the First National Bank of Swaziland to give value to the draft. It is the First National Bank of Swaziland, the issuing bank, whose duty it was to clear the draft and not the respondent.
Furthermore, the appellant did not plead or adduced evidence that the draft in issue was lost while in the possession of the respondent. There is no evidence that the respondent converted the value of the draft to its own use as pleaded by the appellant in paragraph 22 of the statement of claim.
It is important that I point out that the appellant’s averments in paragraphs 21(a), 25, 26(1), (a), (b), (c), (d) and paragraph 26(2) which dealt with particulars of negligence and particulars of special damages and general damages respectively are not supported by evidence. Where no evidence is adduced in support of averments in a pleading the facts are deemed abandoned. Averments in a pleading do not constitute evidence or proof. See Idesoh vs. Ordia (supra) and C. A. P. Plc. vs. Vital Inv. Ltd. (2006) 6 NWLR (Pt. 976) 220 at 241.
Moreover, for a claim in special damages to succeed, it must be pleaded and proved strictly as the court is not entitled to make its own estimate on such an issue without such proof. See Odulaja vs. Haddad (1973) 1 All NLR 191; Dumez (Nig.)Ltd. vs. Ogboli (1972) 3 SC 196; Gege vs. Nande (supra) and S. P. D. C. (Nig.) Ltd. vs. Tiebo VII (2005) 9 NWLR (Pt. 931) 439.
In Stirling Civil Eng.Nig. Ltd. vs. Yahaya (supra), the court held that:
“A feature of the claim for special damage is that there must be viva voce evidence of the item of claim specifically itemized in the pleading.”
Thus, the appellant having failed to prove his assertion or claim, the proper order which the trial court should make is one of dismissal.
I observed that the respondent dissipated so much energy and time dealing with the issue of interest rate of 30% per month. However, there is no ground of appeal relating to the issue of the rate of interest and neither is there any issue for determination on interest or the rate of interest. An appellate court is to confine itself to the issues raised on appeal. See Ivavi vs. Iva Ejigbede (1987) 7 SCNJ 148 and Olalekan vs. Wema Bank Plc. (2000) 13 NWLR (Pt. 683) 57.
Moreover, as the appellant did not prove any of the elements or ingredience of negligence against the respondent, the issue of damages does not arise. See Osigwe vs. Unipetrol (supra) and Chindo Worldwide Ltd. vs. Total Nig. Plc. (supra).
In the circumstances, I shall discountenance this issue of interest raised by the respondent in his brief.
In the final analysis, it is my considered opinion that the trial court was right when it dismissed the appellant’s claims in their entirety. I, therefore, resolve the lone issue against the appellant. There is no merit in this appeal and it therefore fails.
Accordingly, this appeal be and it is hereby dismissed. The judgment of Eyo E. Ita, J., delivered in Suit No.HC/114/2005 on the 16/4/07 be and is hereby affirmed. Costs is assessed and affixed in the sum of N20,000.00 in favour of the respondent.
Appeal dismissed.
Other Citations: (2009)LCN/3222(CA)
