HERITAGE BANK LTD v. DON & CHYKE (NIG) LTD & ANOR
(2020)LCN/14850(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Thursday, December 31, 2020
CA/J/335/2016
RATIO
PROCEEDING: GENERAL PRINCIPLE ON THIRD PARTY PROCEEDINGS
In Okonkwo v Mode (Nig.) Ltd & Anor (2002) LPELR -10981 (CA), this Court had this to say:
“It’s a general principle third party proceedings are basically a contest between the defendant in an action at the instance of the defendant for the purposes of obtaining contribution, indemnity or other remedy or relief against that person called the third party, on the other hand. This is made intelligibly clear by the provision of Rule 5 of Order 12 of the Anambra State High Court, Rules, 1988, which reads. “The third party shall as from the date of the service upon him of the notice, be a party to the suit for the purpose of and within the same rights in respect of his defence against the claim made against him by the defendant and otherwise as if he had been duly sued in ordinary way by the defendant.”
Also in UBN v Odusote Bookstores Ltd (1995)9 NWLR (Pt.421) 558 at 586 the Supreme Court Per Nnaemeka-Agu, JSC pronounced on the nature of third party proceedings as follows:
“For 3rd party proceedings have a life of their own, quite independent of the main action, so that even where the main action has been settled 3rd party proceedings already begun can still proceed. The true effect of service of a 3rd party notice is not that the 3rd party becomes a defendant in the main action but it makes the 3rd party a defendant vis-a-vis the party serving him. As it is so, once the 3rd party notice has been duly commenced the fact that the main claim has been settled will not terminate the third party notice.”
See also Bank of Ireland v U.B.N Ltd & Anor (1998)7 SC (Pt.11) 189, wherein the Supreme Court said:
“The 3rd party is not a defendant in the main action, but a defendant of the party at whose instance he has been joined.”
The purpose of third party proceedings has also been described in Total (Nig.) Plc. v DPC Ltd (2002) LPELR -7170 by this Court thus:
“In third party proceedings, the defendant is simply saying, if I am liable to the plaintiff, the 3rd party is liable to me. The plaintiff may not have any claim against the 3rd party, but the defendant has.” PER GANA MSHELIA, J.C.A.
DOCUMENT: WHEN WILL A DOCUMENT BE DISCOUNTENANCED ON APPEAL
A document will be discountenanced on appeal even where it was admitted without objection. The case of Nwaoba v Ihebie cited (supra) by 1st Respondent’s counsel is instructive on this point. PER GANA MSHELIA, J.C.A.
NEGLIGENCE: ELEMENTS TO PROVE NEGLIGENCE
In an action for negligence, the plaintiff must prove:
(a) The existence of a duty of care owed to the plaintiff by the defendant.
(b) Breach of that duty of care by the defendant.
(c) Damages suffered by the plaintiff as a result of the breach by the defendant of that duty of care. See Edok-Eter Mandilas Ltd v Ale (1985)3 NWLR (Pt.11) 43; Okeowo v Sanyaolu (1986)2 NWLR (Pt.23) 471, Iyere v B.F.F.M Ltd (2008)18 NWLR (Pt.1119) 300, P.S.H.S.M.B v Goshwe (2013)2 NWLR (Pt.1338) 383.
The burden of proof of negligence falls on the plaintiff who alleges negligence. This is because negligence is a question of fact and it is the duty of the party who asserts it, to prove it. Failure to prove particulars of negligence pleaded is fatal to the case of the plaintiff. See Abubakar v Joseph (2008)13 NWLR (Pt.1104) 307. PER GANA MSHELIA, J.C.A.
Before Our Lordships:
Adzira Gana Mshelia Justice of the Court of Appeal
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
HERITAGE BANK LTD APPELANT(S)
And
1. DON & CHYKE (NIG.) LTD 2. INSPECTOR GENERAL OF POLICE RESPONDENT(S)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Plateau State High Court, Coram Justice D.D. Longi, delivered on 25th October, 2016 in Suit No. PLD/J48/2015. The brief facts of the case as presented by the Respondents are that, the 1st Respondent is a customer of the Appellant and maintains two business accounts at the Appellant’s Jos branch name a Naira Account No. 300030126 and a Dollar Account No. 3100060194. On the 7th of April, 2015, the Appellant then known as Enterprise Bank Plc., blocked the Plaintiff’s Naira Account. When the 1st Respondent’s Managing Director inquired as to why the Naira Account was blocked, the Appellant gave him a copy of an order (Exhibit P1) signed by Senior Magistrate – Folashade M. Oyekan (Mrs.) sitting at Magistrate Court 16 Abuja. The 1st Respondent took steps to set aside the said order via Exhibit P5 dated 25/06/2015 signed by the same Senior Magistrate Oyekan (Mrs.)
On the 9th April, 2015 and 13/05/2015 respectively, the 1st Respondent requested transfer of funds out of its Dollar Account to its customers
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abroad. The Appellant did not honour the requests. The 1st Respondent again inquired as to why the Appellant would not honour its requests on the Dollar Account, but the Appellant did not give any answer. The 1st Respondent through its counsel twice demanded that the transactions be honoured by the Appellant, yet the Appellant did not do so, and refused to even answer or give any explanations as to the requests. Further transactions were requested on the Account, but the Appellant refused to honour them and at a stage refused to accept the 1st Respondent’s further requests. Frustrated by the Appellant’s conduct as above, the 1st Respondent on the 27th July, 2015 instituted this action against the Appellant at the High Court of Justice, Jos in its former name ENTERPRISE BANK PLC. The Plaintiff’s claim against the defendant are as follows:
a) A Declaration that the Defendant’s blocking of the Plaintiff’s Domiciliary (Dollar) Account No. 3100060194 since the 13th May, 2015 or thereabout without reasonable cause, or without any explanation at all to the plaintiff is negligent and wrongful.
b) An Order setting
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aside the blockage on the above-mentioned plaintiff’s Domiciliary Account.
c) An Order setting aside purported instrument howsoever obtained which may be in the Defendant’s possession, affecting the plaintiff’s above mentioned Account.
d) The sum of N250,000,000.00 general damages for the Defendant’s conduct as aforesaid.
e) The costs of this action.
The Defendant joined issues by filing a statement of Defence on the 16th September, 2015. The 2nd Respondent was brought in by the Appellant as third party with the leave of the Court. At the trial, Plaintiff now 1st Respondent called one witness and tendered several Exhibits and closed its case. While the Defendant now appellant called one witness and closed its defence. By a Motion Exparte motion dated 12/10/2015 Appellant/defendant with a leave of Court sought to join Inspector general by issuing and serving third party notice. The witness also tendered Exhibits. Both counsel exchanged written addresses and adopted same. At the end, the learned trial Judge evaluated the evidence adduced and entered Judgment in favour of the plaintiff now 1st Respondent.
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Dissatisfied with the decision of the Court below, Appellant lodged an appeal to this Court vide its Notice and Grounds of Appeal dated 21/11/2016 and filed on 22/11/2016 containing 20 (Twenty) Grounds of Appeal. With leave of Court, Appellant filed an Amended Notice of Appeal on 26/04/2017 but deemed properly amended on 07/06/2017. The Amended Notice of Appeal contained 17 (seventeen) Grounds of Appeal.
In compliance with the rules of Court, parties exchanged their respective briefs of Argument. Appellants Amended Brief of Argument settled by V.M.G. Pwul Esq., was dated 31/07/2017 and filed on 01/08/2017 but deemed properly filed on 13/11/2017. The 1st Respondent’s Brief of Argument settled by R.C. Nwaiwu Esq., was dated 20/09/2018 and filed on 03/10/2018 but deemed properly filed on 26/11/2018. The Appellant’s Amended Reply to the 1st Respondent’s Amended Brief of Argument was filed on 26/06/2020 but deemed properly filed on 12/10/2020. The 2nd Respondent’s Brief of Argument dated 05/02/2019 settled by Simon Lough Esq., and Peter Amadi Esq was filed on 08/02/2019 but deemed properly filed on 21/05/2019. Appellant’s Reply to the 2nd
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Respondent’s Brief of Argument was filed on 26/06/2020 but deemed properly filed on 12/10/2020. When the Appeal came up for hearing all counsel adopted their respective briefs of argument. Appellant’s counsel urged the Court to allow the appeal while 1st and 2nd Respondent’s counsel urged the Court to dismiss the appeal.
In the Appellant’s Amended Brief of Argument 6 (six) issues were distilled for determination as follows:
i. Whether the learned trial Judge misconceived the third party proceedings and whether by failing to pronounce or award damages on the third party process, the lower Court had not breached the Appellant’s right of fair hearing (ground 1, 2, 3 and 14).
ii. Whether the learned trial Judge was right in his decision that Exhibit D2 was inadmissible (Grounds 6, 8 and 11).
iii. Having regard to the manner of evaluation of Exhibit D2 and reliance on Exhibit P7, whether the learned trial Judge was not in error when he failed to uphold the appellant’s defence that it acted in obedience to a valid and subsisting Court order. (Grounds 4, 7 and 9).
iv. Having regard to the state of the
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parties pleadings and evidence, whether the learned trial Judge was not in error when he decided that the 1st Respondent had established negligence against the Appellant (Ground 10 & 13).
v. Whether the award of N150,000,000.00 general damages was not excessive, having regard to the irrelevant factors taken into consideration and the entire circumstances of the case (Ground 15).
vi. Whether the 1st Respondent having sued a non-juristic person, the lower Court did not lack the requisite jurisdiction to entertain and determine the 1st Respondent’s action brought before it. (Ground 17).
On the part of the 1st Respondent, 6(six) issues were distilled for determination thus:
i. Whether any third party claim was ascertained at the trial in the Court below to warrant any Judgment in respect thereof. (Ground 1,2,3 and 14).
ii. Exhibit D2 having been admitted in evidence on 08/06/2016 as the original order made on 12/05/2015 by Aliyu Shafa Senior District Judge 1, was the learned trial Judge right to evaluate and compare the said Exhibit D2 along with Exhibit P7 which is a certified true copy thereof certified on the 23/12/2015
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before Exhibit D2 was tendered on the above date and to come to the conclusion that Exhibit D2 was questionable and unreliable? (Grounds 6, 8, 9, 11).
iii. Whether the learned trial Judge properly evaluated Exhibits P7 and D2 and came to the right decision concerning each of them? (Ground 4, 5, 7).
iv. Having regard to the state of the parties pleadings and evidence was the learned trial Judge right to hold that the appellant was negligent in handling the issues relating to domiciliary account of the 1st Respondent? (Grounds 10 and 13).
v. Whether the award of the sum N150,000,000.00 as general damages against the appellant was not justifiable having regard to the entire circumstances of this case? (Ground 15).
vi. Whether the issue of jurisdiction bordering on the appellant’s name was not frivolously and inequitably raised on appeal, after the said name was introduce into the suit by the appellant itself? (Ground 17).
The 2nd Respondent did not formulate any new issue but adopted the 6 (six) issues formulated by the appellant and responded to them seriatim.
I have examined the issues raised by the parties. I will adopt the
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issues raised by the Appellant since the issues raised by the Respondents are similarly couched.
I will resolve the issues in this order, 6, 1, 2, 3, 4 and 5. The reason is not farfetched, issue 6 touches on the jurisdiction of the Court as such it is necessary to determine it first.
Issue Six
In arguing this issue, learned counsel for the Appellant submitted that the lower Court totally lacked requisite jurisdiction to entertain and determine the 1st Respondent’s action as it did. That the lower Court’s decision is abinitio null and void and is strictly liable to be set aside. That the 1st Respondent as the plaintiff in the lower Court sued and obtained Judgment against a non-juristic, non-existent person HERITAGE BANK (NIG.) LTD. According to counsel, it is solidly and unconditional principle of law that only a natural or juristic person may sue or be sued by another. Reliance placed on Okonkwo and Anor v Ekwebi & Ors. (2016) LPELR – 41059 (CA). See also A.G. Federation v ANPP & Ors. (2003) LPELR – 630 (SC), Geneva v Afribank (Nig.) Plc. (2013) LPELR – 20662 (SC), Non-existing The Registered Trustees of the Airline Operators of Nigeria v NAMA (2014) LPELR -22372 (SC)
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and Iyke Medical Merchandize v Pfizer Inc. & Anor (2001) LPELR -1579 (SC). That Heritage Bank (Nig.) Ltd is no conceivable way a natural or juristic person. That it falls under none of the categories listed in the case of Iyke Medial Merchandize (Supra). Counsel cited other cases on this issue in his brief and urged the Court to strike out the suit.
In response, learned counsel for the 1st Respondent submitted that the issue of jurisdiction brought into this matter based on the name of the appellant at this stage is most frivolous and ridiculous. That in arguing the issue, the Appellant merely parroted the case law on jurisdiction without a single reference to the facts and circumstances leading to the emergence of its name in the suit at the lower Court. Counsel provided the facts in paragraph 73 of the 1st Respondent’s brief of argument. That from the record Appellant introduced the change of its name from Enterprise Bank to Heritage Bank. According to counsel it did not oppose the motion of the 1st Respondent to formalize the change of name it introduced during the trial. That it did not
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appeal against the order changing its name. That it adopted the name Heritage Bank (Nig.) Ltd in its processes up to the time of Judgment. That Appellant cannot be allowed to probate and reprobate, it should be estopped. Reliance placed on S. 169 of the Evidence Act, 2011 and Dauda v Access Bank Plc. (2017)8 NWLR (Pt.1568) 21 @ paras E-G. Counsel argued that to allow the appellant to get away with this over-reaching objection about its name at this stage would be to inflict substantial injustice on the 1st Respondent since the appellant was the author and donor of the name it now protests about. Learned counsel further submitted that Appellant had a duty to prove at the trial the corporate personality of any name which claims to be its own. Cited in aid Dairo v Registered Trustees, T.A.D Lagos (2018)1 NWLR (Pt.1599) 62 @ 69, para 10. Counsel contended that the general principle that jurisdiction can be raised at any time in a proceeding and even on appeal will apply subject to the facts and peculiarities of each case.
On the use of “Plc” and “Limited” or “LTD” counsel submitted that the issue of Appellant as Plc., was
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raised for the first time in this appeal. That Appellant challenged its Limited name which it supplied at the trial by itself. It was argued that the legal significance of the abbreviation ‘PLC’ and the word “Limited” in a company’s name is the same, that is to show incorporation and or juristic personality. That the Appellant’s identity as a juristic personality is assured by the use of either “Plc” or “Limited”. That neither of them is misleading to the Appellant and it suffers no miscarriage of justice by the use of either. That the complaint about its name is merely academic rooted in nomenclature. Counsel referred to the case ofAdejobi v State (2011) 46 (Pt.2) NSCQR 737 @ 762-763, wherein the Supreme Court Per Galadima, JSC stated that: ”The fact that the Respondent did not add the word “Plc” to Trans International Bank will not diminish the fact that the Bank is a public liability company and indeed a juristic personality.”
Counsel also cited the case of Carlen v University of Jos (1994)1 SCNJ 72 to argue that even if there is slightest doubt that the Heritage bank
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is a juristic person it has been established that it is a bank which deals with members of the public at large in monetary matters, including the 1st Respondent.
Counsel made further submission out of abundance of caution. It was contended that this Court has power both inherent and statutory under Section 15 of the Court of Appeal Act to treat the inclusion of the Abbreviation (Nig.) as a misnomer and strike out the said abbreviation if necessary. He urged Court to do so and decide the appeal on merit.
Counsel further submitted that the identity of the Appellant as a corporate banking institution remains the same as donated by itself, or as ordered by the lower Court, that is Heritage Bank. That superior Courts in Nigeria have treated cases in which juristic persons in existence have been wrongly named in suits before the Courts as a case of misnomer. Reliance placed on Obasi v Mikson Establishment Industries Ltd (2016) NWLR (Pt.1539) 335 and Omisore v Aregbesola (2015)15 NWLR (Pt.1482) 205. Also a further related case of Okeke v Nnamdi Azikiwe University Teaching Hospital (2018) LPELR – 43781 (CA) was cited in support. Counsel maintained
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that Appellant’s identity and name as a bank, Heritage Bank is clear in the name it provided by itself. That its corporate or juristic nature is also disclosed by the word “Limited”. That there is no dispute that the appellant was involved in the transaction leading to the appeal as Enterprise Bank, and later as heritage bank as it called itself. That is why it is appealing against the Judgment of the lower Court on its merit. He urged the Court to resolve this issue against the Appellant.
I have considered the submissions of counsel on this issue. It is necessary to first narrate what transpired at the lower Court. The record revealed that Appellant was sued by the 1st Respondent on the 27th July, 2015 in its well-known name as Enterprise bank Plc., it entered appearance and filed its statement of defence. The 1st Respondent opened and closed its case. On the 8th June, 2016, the Appellant through its DW1, Mr. Stephen Sabu Fadar, the Experience Centre Manager of its Regional Centre (North Central) testified and informed the lower Court that the Appellant has changed its name to heritage bank (Nig.) Limited (See page 149 of the Record).
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Following that evidence, the 1st Respondent on the 23rd June, 2016 applied by motion on notice which was not opposed by the Appellant to amend the name of Appellant to reflect its new name. The application was granted and the lower Court ordered that from henceforth all subsequent processes should reflect the new name of the appellant (see page 152 of the Record). It is to be noted also that the record of Appeal bears Heritage Bank Plc. as the Appellant.
I think Appellant is only trying to be too technical in this case. Appellant was properly sued in its correct name Enterprise bank Plc. The name was later changed to Heritage Bank (Nig.) Ltd by order of Court pursuant to the application made by 1st Respondent. Following the decision of the Supreme Court in Adejobi v State (supra) adding the word Plc. to Heritage Bank will not diminish the fact that the bank is a public liability company and indeed a juristic personality.
I have examined the Judgment of the trial Court appearing at page 156 of the record. I agree Appellant’s name is reflected as “Heritage Bank (Nig.) Ltd.” 1st Respondent’s counsel has urged the Court to treat
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the inclusion of the abbreviation (Nig.) as a misnomer and then strike out the abbreviation if necessary so that the appeal will be decided on the merit. The Supreme Court cases of Obasi v Mikson Establishment Industries Ltd (Supra) and Omisore v Aregbesola (Supra) cited by 1st Respondent’s counsel, are very instructive on this issue. The superior Courts have treated cases in which juristic persons in existence have been wrongly named before the Courts as a misnomer. By these authorities, a Court has power to amend the name in the overall interest of justice. It cannot be allowed to vitiate proceedings which were duly initiated or properly filed. I will accordingly without much ado amend the name of appellant “Heritage Bank (Nig.) Ltd” used in the Judgment appearing at page 156 of the record by deleting the word (Nig.) to read Heritage Bank Ltd. I hold that the trial Court had jurisdiction to entertain and determine this suit on appeal. Issue 6 is accordingly resolved against the Appellant.
Issue One
In arguing issue one, learned counsel for the Appellant noted that the lower Court completely neglected and failed to determine the
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third party proceedings and make a pronouncement thereon, upon determination of the substantive suit. That the lower Court awarded damages against the Appellant instead of the 3rd party. Counsel submitted that a third party proceeding is instituted by a defendant against a party (third party) excluded from the substantive action. It sprouts from the substantive action but is determined separately therefrom. That third party proceeding involves strictly the defendants and the third party. See Okonkwo v Mode Nigeria Limited & Anor (2002) LPELR -10981 (CA). Counsel submitted that the learned trial Judge misconceived the import and application of the third party proceedings. That the learned trial Judge erroneously held that the 1st Respondent ought to have been aware of the 2nd Respondent.
Furthermore, counsel contended that the lower Court erred in failing to enter default Judgment in the third party proceedings for the appellant, against the 2nd Respondent. According to counsel the 2nd Respondent was duly served the third party notice and clearly opted not to respond thereto. That the 2nd Respondent neither entered appearance as required nor filed its
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defence to the third party notice. That by implication, the appellant’s action against the 2nd Respondent stood unchallenged and therefore admitted. Counsel referred to Order 11 Rule 21 of the Plateau State High Court (Civil Procedure) Rules which provides that a default Judgment should be entered where a party fails to defend an action, including a third party notice, against it. See also INEC & Anor v Maduabum (2008) LPELR -4316 (CA). That learned trial Judge failed to be guided by both the Rules and Judicial precedents in reaching his decision. That if he had been properly guided he would have entered default Judgment for the Appellant. Reliance placed on Virgin Nigeria Airways Ltd v Roijien (2013) LPELR -22044 (CA) and Oscar & ANor v Isah (2014) LPELR -23620 (CA). That the proper thing the learned trial Judge would have done was to have entered default Judgment in favour of the Appellant in the third party proceedings and award damages against the 2nd Respondent. That the failure of learned trial Judge to do the right thing, occasioned a miscarriage of justice. According to counsel the failure of the learned trial Judge to consider and
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determine the third party proceedings had breached appellant’s fundamental right to be heard. Reference made to Fulani v Rafawa & Ors. (2013) LPELR – 20384 (CA), wherein it was held that the right to be heard is so fundamental a principle of our adjudicatory process that it cannot be compromised on any ground. See also Atano v A.g. Bendel State (1988)2 NWLR (Pt.75) 132, Angwe v The President of Federal Republic of Nigeria & Ors (2012) LPELR -19725 (CA). That on the strength of the decisions in the cases cited supra, the proceedings before the lower Court are null and void, having been vitiated by the breach of the Appellant’s fundamental right to be heard in the third party proceedings. Counsel urged the Court to invoke Order 11 Rule 21 of the Plateau State (Civil Procedures) Rules and award deserving damages against the 2nd Respondent not the Appellant. That this Court is empowered by Section 15 of the Court of Appeal Act, 2004, to make an order which the lower Court was empowered to, but did not make. See Adams v Umar & Ors (2008) LPELR -3591 (CA).
In response, learned counsel for the 1st Respondent submitted that the only
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mention of third party in the case was when the appellant moved a motion exparte to join the third party on the 22nd October, 2015. That all through the trial, there was no mention of third party. That return of service of the third party notice was not mentioned or ascertained before the Court. According to counsel appellant did not at any point during the trial indicate that it had a claim against the third party or establish the nature of the claim. That during the final address at the lower Court appellant did not refer to its claim against the third party or even ask for Judgment against the third party. That the 3rd party notice was as good as abandoned and the lower Court could not have been a Father Christmas to give it to the Appellant what it did not ask for. That like an abandoned pleading, the third party notice became dead for the purpose of the claim in this suit. Reliance placed on Ajikawo v Ansaldo (Nig.) Ltd (1991)2 NWLR (Pt.173) 359, 375 para C-F. According to counsel, the learned trial Judge had in granting the application for the joinder of the third party, ordered that the applicant should ensure that the writ was amended for service on the
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third party, but this was not done. That this re-enforced the fact that the third party notice had been abandoned. That the learned trial Judge rightly took the crucial decision to determine the claim between the 1st Respondent and the appellant. Cited in aid Onyemelukwe v I.D. Alberto & Co. Ltd & Anor (2001) FWLR (Pt.83) 2166 @ 2182, paras F-H. That on the strength of the authority cited supra, it can be seen that the appellant’s third party claim was not ascertained. Learned counsel submitted that a party who had the opportunity to present its case but failed to do so cannot later on complain that it was denied fair hearing. SeeJadcom Ltd v Oguns Electricals (2003) FWLR (Pt.183) 165 @ 188 para E-F and First Alstate Sec Ltd v Adesoye Holdings Ltd (2013)16 NWLR (Pt.1381) 470. Counsel further submitted that the attempt of appellant to find solace under S.15 of the Court of Appeal Act is misplaced. That the said section does not enable the Court to do what the Appellant failed to do at the trial Court, namely presenting its claim to the lower Court. That it does not authorize the Court to fill a vacuum or make the case which a party failed to make
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at the lower Court. He urged the Court to resolve the issue against the appellant.
On the part of the second Respondent, it was contended that the learned trial Judge did not misconceive the third party proceedings and there was nothing on the third party proceedings to pronounce on by the trial Court. That appellant never ascertained his claim against the 2nd Respondent, in the third party notice or proceedings. Counsel submitted that a third party proceedings basically arise where a defendant to a suit has a claim for indemnity/contribution against another person called the third party in the event of Judgment being entered in favour of the plaintiff against the defendant. That the service of the third party notice alone on the third party does not automatically make the third party to the action. That there must be ascertainable claim made by the defendant against the third party which must be determined by the Court. See Okafor v ACB Ltd (1975)5 SC 89. Learned counsel argued that in the instant case Appellant’s third party claim was not presented by the appellant to be ascertained. That it was abandoned. Counsel also contended that appellant
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did not disclose a return of service on the so-called third party. He said the law is settled that a party who had the opportunity to present its case but failed to do so cannot later on complain that it was denied fair hearing. See Jadcom Ltd v Oguns Electricals (2003) FWLR (Pt.183) paras E-F and Malgit v Dachen (1998) 5 NWLR (Pt.550) 384. Counsel further submitted that the trial Court while granting leave to the appellant to join the 2nd Respondent (inspector general of Police) in the third party suit, ordered that the Appellant should ensure the amended writ is duly filed and served accordingly. That there is nothing in the record of appeal to show that the above order of the Court was complied with by the appellant. That appellant neither amended the writ nor filed and served same as ordered by the trial Court. According to counsel there is nothing in the record of appeal to indicate that the third party notice was ever served on the (third party) 2nd Respondent herein as there is no proof of such service in the record. That parties are bound by the record of appeal. Reference made to Olorunyolemi v Akhagbe (2010)8 NWLR (pt.1195) 48, Registered Trustees of International Secondary School Orlu & Anor v BICOZ Oil Company (Nig.) Ltd
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(2014) LPELR -22836, Oguntayo v Adelaja (2009) 15 NWLR (Pt.1163) 150 @ 190-191. Furthermore, counsel contended that the argument of the appellant in paragraphs 12, 13, 14, 15 and 16 and the cases cited that the third party notice was served on the 2nd Respondent without exhibiting the proof of service in the record is mere assertion and urged Court to discountenance same as address of counsel does not take the place of law and facts. See UBN v Ayodare (2007) 30 NSCQR 1 @ 3 Ratio 3. That service of Court process, i.e the amended writ and third party notice, was sine qua non to the Court assuming jurisdiction in the matter over the third party. He argued that in absence of the acknowledgment of service of the amended writ and third party notice through endorsement by the 2nd respondent herein (third party at the trial Court) and proof of service duly endorsed and filed or an order for substituted service duly complied with and filed as known to law, the 2nd Respondent contended that his right to fair hearing would have been breached had the trial Court proceeded to award damages
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against the 2nd Respondent. Reliance placed on Kalu Mark v Eke (2004)17 NSCQR 60 @ 81; Olorunyolemi v Akhagbe (2010) 41 NSCQR 342 @ 345 and Societe General Bank (Nig.) Ltd v Adewunmi (2003) 14 NSCQR 11 at 129. That proof of service of Court process on the parties is established by a duly filed affidavit of service deposed to be bailiff who effected the service. Reference made to Estate of Late Chief H.I.S. Idisi v Ecodril (Nig.) Ltd (supra) at page 379.
On the issue of jurisdiction and competence to hear matters counsel referred to cases of Inakoju v Adeleke Rashidi Ladoja & Ors (2007) 29 NSCQR 958 @ 1050 paras E-H, Kalu Mark v Eke (2004) 17 NSCQR 60 @ 89, Sken Consult (Nig.) Ltd v Godwin Sekondy Uke (2004)1 NSCQR 656 at 674 and Madukolu & Ors v Nkemdilim (1962) 1 All NLR 587 @ 594.
On issue of right to fair hearing counsel cited in aid, Achuzia v Ogbomah (2016) 11 NWLR (Pt.1522) 59 @ 81, Mpama v FBN (2013) 531, NSCQR 190 @ 211-212; Ogundoyin v Adeyemi (2001)13 NWLR (Pt.730) 403, Kotoye v CBN (1989)1 NWLR (pt. 98) 419 at 448 and First Alstate Sec Ltd v Adesoye Holdings (2016) NWLR (Pt.1381) 470 @ 497-498. That Appellant cannot be heard in this
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appeal to complain of lack of fair hearing with regards to its third party notice or claim. He urged the Court to resolve issue one in favour of the 2nd respondent.
I have gone through the submission of each counsel representing the parties. The complaint of the Appellant relates to breach of fair hearing. That the failure of the learned trial Judge to consider and pronounce on the third party notice had breached appellant’s right to fair hearing.
The 2nd Respondent however, raised a vital point that the third party notice was never served on the 2nd Respondent. Issue of service of Court process is very fundamental as it goes to the root of Court’s competence to adjudicate on the matter. Appellant’s counsel had argued in his reply brief that 2nd Respondent should not be heard because of their failure to participate in the matter at the trial Court. The point of law raised by 2nd Respondent is very fundamental and cannot be glossed over.
I have carefully gone through the printed records. It is clear from the record that Appellant filed exparte application seeking leave to join 2nd Respondent as third party. In granting the
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application, trial Court ordered that appellant should amend the writ of summons and serve same. There is nowhere in the record confirming that the writ was amended and duly served as ordered by the Court. However, after going through the supplementary record it is evident that the third party notice was served on the 2nd Respondent. See pages 3-4 of the record. The stamp indicates that the third party notice was served and received on 23/11/2015. The claim of the 2nd Respondent that the third party notice was not served on it is unfounded. Similarly, the complaint of the 1st Respondent of non-service of the third party notice on it, is not fatal to the Appellant’s case, having regard to the nature of third party proceedings. In Okonkwo v Mode (Nig.) Ltd & Anor (2002) LPELR -10981 (CA), this Court had this to say:
“It’s a general principle third party proceedings are basically a contest between the defendant in an action at the instance of the defendant for the purposes of obtaining contribution, indemnity or other remedy or relief against that person called the third party, on the other hand. This is made intelligibly clear by the
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provision of Rule 5 of Order 12 of the Anambra State High Court, Rules, 1988, which reads. “The third party shall as from the date of the service upon him of the notice, be a party to the suit for the purpose of and within the same rights in respect of his defence against the claim made against him by the defendant and otherwise as if he had been duly sued in ordinary way by the defendant.”
Also in UBN v Odusote Bookstores Ltd (1995)9 NWLR (Pt.421) 558 at 586 the Supreme Court Per Nnaemeka-Agu, JSC pronounced on the nature of third party proceedings as follows:
“For 3rd party proceedings have a life of their own, quite independent of the main action, so that even where the main action has been settled 3rd party proceedings already begun can still proceed. The true effect of service of a 3rd party notice is not that the 3rd party becomes a defendant in the main action but it makes the 3rd party a defendant vis-a-vis the party serving him. As it is so, once the 3rd party notice has been duly commenced the fact that the main claim has been settled will not terminate the third party notice.”
See also Bank of Ireland v U.B.N Ltd & Anor
27
(1998)7 SC (Pt.11) 189, wherein the Supreme Court said:
“The 3rd party is not a defendant in the main action, but a defendant of the party at whose instance he has been joined.”
The purpose of third party proceedings has also been described in Total (Nig.) Plc. v DPC Ltd (2002) LPELR -7170 by this Court thus:
“In third party proceedings, the defendant is simply saying, if I am liable to the plaintiff, the 3rd party is liable to me. The plaintiff may not have any claim against the 3rd party, but the defendant has.”
In the instant case, deducing from the above authorities, the joined 3rd party (2nd Respondent) becomes a defendant to the defendant in the main action who has joined him, and this is treated as a separate action. As earlier noted the third party proceedings have a life of their own, quite independent of the main action. It is evident from the printed record that the 2nd Respondent (3rd party) though served with the third party notice and other processes did not enter appearance nor took steps to defend the third party notice. As argued by 1st Respondent’s counsel, the issue of third party
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notice was only mentioned at the address stage. There was no address on the liability of the third party/2nd Respondent. However, Order 11 Rule 21 of the Plateau State High Court (Civil Procedure) Rules, 1987 has provided a way out. Rule 21 provides:
“If a third party duly served with a third party notice does not enter an appearance or makes default in filing any pleading which he has been ordered to file, he shall be deemed to admit any claim stated in the third party notice and shall be bound by any Judgment given in the action, whether by counsel or otherwise, and by any decision therein or any question specified in the action, and when contribution or indemnity or other relief or remedy is claimed against him in the notice, he shall be deemed admit his liability in respect of such contribution or indemnity or other relief or remedy.”
By the above provision, since there is proper service of the third party notice on the 2nd Respondent/3rd Party, it is deemed to have admitted liability in respect of the relief sought.
Having failed to defend the 3rd party notice, the learned trial Judge ought to have made pronouncement on the
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liability of the 2nd Respondent on the 3rd party notice. While it may be necessary for the lower Court to pronounce upon the liability of the third party in the third party proceedings at the time Judgment in the main suit is pronounced, failure to do so, does not make the said Judgment a nullity. The failure does not in my humble view constitute a breach of fair hearing. These are two different and separate proceedings. The 1st Respondent’s claim against the Appellant was independent of the appellant’s claim against the 3rd Party/2nd Respondent.
Appellant had urged the Court to invoke Section 15 of the Court of Appeal Act and do what the trial Court failed to do. It has to be noted that the third party proceedings is a different suit between the Defendant/Appellant and the 2nd Respondent/Third Party. It is evident from the record that the learned trial Judge did not make findings regarding the liability of the 2nd Respondent/3rd Party as it relates to the reliefs sought in the third party notice. This Court is not in a position to interfere and make pronouncement since the claim has not been ascertained. Having regard to the facts and
30
circumstances this is not a proper case to invoke Section 15 as urged by the Appellant. I will resolve issue one in favour of the 1st and 2nd Respondents against the Appellant.
It has to be noted that 2nd Respondent did not contest the case at the trial Court. But issue one was considered because it raised point of law i.e issue of non-service that is why it was considered. However, for the remaining issues I will discountenance them.
Issue Two and Three
The two issues were argued jointly by the Appellant on the ground that both issues concern admissibility and evaluation of the evidence i.e. Exhibit D2 and D7 respectively. Appellant’s argument spanned from paragraphs 25-67 of Amended Brief of Argument. Learned counsel for the Appellant contended that the lower Court wrongly held that Exhibit P7 did not call for the 1st Respondent’s account to be blocked or frozen. That the lower’s position is that the Appellant failed to comply with Exhibit P7. It was argued that Exhibit P7 was not served on the Appellant. Counsel contended that no party or person at all may be expected to obey or comply with an order he was not served with or
31
aware of. That the law is trite that a person must be served with a Court order that affects him to secure his liability based thereon. See Bennie v Gold (1996)8 NWLR (Pt.465) 230; Grema v Janyun (2001)6 NWLR (Pt.709) 4141 at 424 paras E-G. It was emphasized that Exhibit P7 was not served on the Appellant. That Appellant did not breach Exhibit P7 because same was not served on it. As regards Exhibit D2 its admissibility was not an issue at any point at all in the course of trial in the lower Court. Learned counsel submitted that the learned trial Judge did not accord the probative value Exhibit D2 deserved. According to counsel Exhibit D2 should have been considered as genuine as it was tendered and admitted without objection.
Counsel further contended that the holding that Exhibit D2 should have been tendered by its maker, is an issue preliminary to admitting a document in evidence. Counsel contended that the ideal and only opportunity to object to the admissibility of a document, such as and including D2, is at the moment it is sought to be tendered in evidence. See Sama’ila v State (2015) LPELR -24383 (CA) and Oguntayo v Adekoya & Ors (2009) LPELR -2353 (SC).
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Appellant’s counsel also contended that the learned trial Judge considered the objection as to the admissibility of Exhibit D2 suo motu. That failing to call parties to address it before deciding thereon, amounts to a breach of the parties fundamental right to fair hearing. That any proceedings conducted without fair hearing is tritely a nullity. See Obolo & Ors v Ilukoyenikan & Ors (2013) LPELR -20324 (CA), Finnih v Imade (1992) LPELR 1277 (SC); Egbuchu v Continental Merchant Bank Plc. & Ors. (2016) LPELR -40053 (SC), Respondent’s counsel argued that Exhibit D2 was not certified being a public document. Appellant’s counsel submitted that Exhibit D2, being the original copy of a public document, constituted primary evidence and therefore was admissible. Reliance placed on Habibu v State (2015) LPELR -26006 (CA) Abdullahi v FRN (2016) LPELR -40101 (CA) Olateju v Sanni (2010) LPELR -4752 (CA); Access bank Plc. v Ugwuh (2013) LPELR -20735. He urged the Court to re-evaluate Exhibit D2 and resolve issue in favour of the Appellant.
The 1st Respondent responded to Appellant’s argument in paragraphs 25-49 of
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its brief of argument. Learned counsel urged the Court in commencing his argument to discountenance argument of the appellant relating to non-service of Exhibit P7 in his paragraphs 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 and 35 of its amended appellant’s brief of argument. That the arguments should be ignored as incompetent in that they were not proffered in support of any issue properly identified as emanating from any ground of appeal, about non-service. Counsel cited Akinwale v Bank of the North (2001) FWLR (Pt.40) 1683 to contend that issues are based on grounds of appeal and not particulars of error. That even if the issue of non-service of Exhibit P7 poses any doubt in this appeal, counsel urged the Court to hold that the Appellant had by its own showing proved the service of Exhibit P7 on itself.
It was contended that all the complaints and defects about Exhibit D2 are apparent on its face. That the learned trial Judge was right in comparing Exhibit D2 a supposed original document and Exhibit P7 which is a certified true copy thereof and reached a conclusion which is correct and unassailable.
On the issue of admissibility of Exhibit D2,
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counsel argued that same was admitted without objection, at the trial Court. That issues relating to admissibility or otherwise of the said Exhibit D2 has become merely academic and should not engage the time of the Court as Appellant has done in its brief. It was contended that it is not correct to say that once a document is admitted in evidence without objection, the truthfulness or significance of its contents cannot be questioned. That this accords with the weight a trial Court will attach to a document after examining the document and evaluating it. That the learned trial Judge examined Exhibit D2 and recognized the controversies surrounding it. Counsel relied on the case of Nwaoba v Ihebie (1990)2 NWLR (Pt.134) 589, wherein this Court stated that: “Where a document is altered and bears a false façade and purports to prop up the case of a party relying on it, it is immaterial that no objection was raised to it at the trial. Such document will be discountenanced on appeal.”
Counsel contended that evaluation of documentary evidence is not the preserve of the trial Judge. That Appellate Judges have power to do the same. Cited in aid
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Daggash v Bulama (2014) ALL FWLR (Pt.212) 1660; Nagebu Co. (Nig.) Ltd v Unity Bank Plc. (2014)7 NWLR 42 at 78 paras E-H.
On the Appellant’s complaint that the issue of calling the maker was raised suo motu by the learned trial Judge, counsel contended that the issue concerns evaluation of the document. That the authenticity of the document was challenged under cross-examination. According to counsel from that standpoint, it was up to the appellant to call the maker to confirm the authenticity. Reliance placed on G. Chitex Industries Ltd v Oceanic Bank International (Nig.) Ltd (2005)7 SC 278 @ 290, wherein the Supreme Court held thus: “Where a document is challenged and impugned as unauthentic the maker of the document should be called to support the document, otherwise no weight should be attached to it.” See also Njuma v AOR (2008) ALL FWLR (Pt.439) 571 at 595 paras G. and Kabir v Action Congress (2012) ALL FWLR (Pt.647) 638 @ 66, paras D-H. That assuming but without conceding that the issue was raised suo motu, counsel contended that appellant failed to establish that it caused miscarriage of justice to it as the issue of maker was not
36
the only controversy or anomaly that affects Exhibit D2.
In all, counsel urged the Court to hold that the learned trial Judge adequately and properly evaluated Exhibit D2 and came to the right conclusion about it and resolve issues two and three in favour of the 1st Respondent.
The submission of counsel relating to the two issues are well taken. There is no dispute as to the fact that both Exhibits ‘D2’ and ‘P7’ were tendered and admitted as Exhibits at the lower Court without objection. What is in contest is not whether Exhibit D2 is inadmissible or not but the evaluation of Exhibit D2. A document admitted in evidence without objection can still be subjected to scrutiny on appeal.
On the 8th June, 2016, Exhibit D2, the original Order was tendered through Appellant’s lone witness. Exhibit ‘D2’ had an additional entry which directed the blocking of the 1st Respondent’s Dollar Account. The said witness confirmed under cross-examination that the additional entry was not on Exhibit P7 which is the certified true copy obtained from the senior district Court on 22/12/2015. Also under cross-examination, the
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witness confirmed that the confirmation note written in green biro on Exhibit D2 was done by one Abdullahi who is a staff of the Appellant. The witness also confirmed that the purported second signature of the Judge on the Exhibit D2 was dated 14th May, 2015. Exhibit D2 was already in the custody of the Appellant.
I have carefully examined Exhibit D2 and P7, the Certified True Copy of Exhibit D2. I agree with the learned trial Judge that there are additional entry made on Exhibit D2 which did not appear on Exhibit P7. The learned trial Judge rightly came to the conclusion that Exhibit P7 is genuine document. The document did not authorize the Appellant to block the account of the 1st Respondent. Exhibit P7 is an order on the defendant to grant the Inspector General of Police or the Assistant Inspector General of Police liberty or access to inspect and take copies of ledgers etc and not an order to freeze or block the account in question. As earlier noted Exhibit P7 is a Certified True Copy of the Order (Exhibit D2) which was tendered and admitted without objection. Several issues relating to entries, dates and signature on Exhibit D2 were questioned.
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These additional insertions relates to the weight to be attached to Exhibit D2 by the trial Court. In the case at hand, the learned trial Judge examined and evaluated Exhibit D2 before pronouncing Exhibit P7 as genuine. A document will be discountenanced on appeal even where it was admitted without objection. The case of Nwaoba v Ihebie cited (supra) by 1st Respondent’s counsel is instructive on this point. I entirely agree with the submission of 1st Respondent’s counsel that the learned trial Judge properly evaluated Exhibits P7 and D2 and came to the right conclusion concerning each of them. I will resolve issues two and three in favour of the 1st Respondent.
Issue four
In arguing this issue, learned counsel submitted that the 1st Respondent woefully failed to prove the claim of negligence against the appellant. Counsel contended that it is trite that a claim in negligence is established only by proving a breach in the duty of care owed as well as the damage suffered as a result. That the three ingredients, the duty of care owed, the breach thereof and the damage suffered, must be proved. Reliance placed on United Bank for Africa Plc. v GODM Shoes Industries (Nig.) Ltd
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(2010) LPELR – 9255 (CA). See also Fidelity Bank Plc v Monye & Ors (2012) LPELR -7819 (SC).
It was argued that 1st Respondent failed to show the duty of care owed to it by Appellant that was breached. Counsel argued that the 1st Respondent regards the appellant’s failure to disclose the reason for blocking its account as negligent. That the disclosure of the reason for blocking an account is by no means part of the duty of care owed a customer by a bank. According to counsel, the first mandatory ingredient of negligence is the existence of a duty of care. SeeLinton Trading Co. (Nig.) Ltd v CBN (2015)4 NWLR (pt.1448) 94 at 108 paras D-E.
Learned counsel further submitted that terms of the contractual relationship between the appellant and 1st Respondent does not in any way specifically include disclosure in this case of on-going police investigation on the account in question. That the said disclosure is not a duty owed the 1st Respondent by the appellant. That appellant could not have breached a duty it did not owe the 1st Respondent. Counsel contended that the lower Court by expunging D2, which has
40
been discredited herein before seems to suggest the appellant actually breached its duty of care to the 1st Respondent. It was also argued that the 1st Respondent has woefully failed to prove any damage it suffered due to the appellant’s breach of the duty owed. That 1st Respondent has totally failed to prove negligence against the appellant. See Aluminium Manufacturing Company of Nigeria Ltd v Volkswagen of Nigeria Ltd (2010) LPELR -3759 (CA), First Bank v Azifuaku (2016) LPELR -40173 (CA). That 1st Respondent woefully failed to prove its claim of negligence against the appellant to warrant an award of damages. That 1st Respondent’s claim ought to have been dismissed. He urged the Court to dismiss 1st Respondent’s claim of negligence. SeeNew Improved MANIBANNC Ventures Ltd v First Bank of Nigeria Plc. (2009) LPELR – 8757 (CA). He urged the Court to resolve the issue in favour of the appellant.
On the part of the 1st Respondent, it was contended that the facts as pleaded and testified to by the 1st Respondent were not challenged at all. That negligence was pleaded and full particulars were given in the 1st Respondent’s statement of
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claim paragraph 16 (a-i) and paragraphs 15, 17 and 18 of the plaintiff’s statement on oath. According to counsel, those facts remained unscathed and undisturbed. That the appellant failed to carry out banking transactions requested by the plaintiff. That none of the particulars of negligence as pleaded and given in evidence was ever challenged. That the damages suffered by the plaintiff were duly catalogued at paragraphs 17 of the statement of claim and paragraph 19 of the statement on oath. That the law is clear that evidence not challenged under cross-examination is regarded as true and established. See Lighalo v State (2016)17 NWLR (Pt.1540) 1 at 15 paras A-B; Gaji v Paye (2003) FWLR (163) pages 17-18 paras G-A; Oforlete v State (2000)12 NWLR (Pt.681) 415 and 436.
Counsel further submitted that 1st Respondent pleaded that it requested transfers of funds from its domiciliary account to its customers abroad. That Appellant did not contend that it was not part of the banking duty it owed the 1st Respondent to transfer the funds from its account. That one of the particulars of negligence pleaded by the 1st Respondent which the Appellant did not
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challenge was that the appellant did not inform the 1st Respondent why it blocked its domiciliary account despite repeated demands made to it. That appellant at the trial did not deny this fact but continued to say that it acted under an Order of Court. That before this Court appellant now argued that it did not owe the 1st Respondent the duty of disclosure of ongoing police investigation on the account. Counsel contends that 1st Respondent pleaded at paragraph 15 of its statement of claim that the Appellant owed it the duty of care, good faith and confidentiality with regards to its domiciliary account. That appellant admitted it owed the 1st Respondent the duty of due care, good faith and confidentiality via the said paragraph 18 of its statement of defence. According to counsel, appellant neglected to perform these admitted duties in respect of the 1st respondent’s domiciliary account. He argued that it is trite law that what is admitted needs no proof. That appellant acted in bad faith (mala fide) as pleaded and testified to by the 1st Respondent. He urged the Court to resolve the issue in favour of the 1st Respondent.
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The issue is whether the learned trial Judge was not in error when he decided that the 1st respondent had established negligence against the appellant, having regard to the state of parties pleadings and the evidence adduced.
In resolving this issue, I find it necessary to first reproduce the findings of the learned trial Judge appearing at pages 175-176 of the record for easy reference and emphasis:
“But with respect to the Dollar Account which is the issue in this suit, the plaintiff has asserted and proved that defendant did not respond to its inquiry as to why it blocked its Dollar Account No. 3100060194. To say the least the defendant was not only careless but insensitive in failing to respond to or reply Exhibits P2 and P3, which the defendant did not deny receipt of, but clearly admitted receiving same and produced it, notice being placed on it to produce.
I am very surprised with all due respect to the learned counsel for the Defendant who is hammering on an order of 12th May, 2015. Before 12th May, 2015, the defendant has ignored the inquiry of the plaintiff as to why the Dollar Account was blocked. And even the so called Court order of 12th May, 2015
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was not communicated to the plaintiff even on request as to why the Dollar Account was blocked of frozen.
Imagine the plaintiff being kept in the dark from 8th April, 2015 when it first made attempt to transact on the said account until this suit was filed and pleadings exchanged, with the statement of defence being filed on 15th September, 2015 and plaintiff being served through his counsel on the said 16th September, 2015. That is to say for almost 6 (six) months the plaintiff was kept in the dark concerning his own Dollar Account. I ask the question, what else could be more careless and negligent? I hold that the crux of the defence, the pivot of the defence, Exhibit D2 having been expunged, things have fallen apart for the defendant and the centre cannot hold. It is my holding that the plaintiff has proved its claim on the balance of probability and by the preponderance of evidence. And I hereby uphold reliefs (a), (b), & (c).”
The question now is whether the above findings of the learned trial Judge is supported by evidence. In proving its case, the 1st Respondent relied on its pleadings and evidence adduced by its sole witness.
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The relevant paragraph of the pleadings are 10, 11, 12, 14, 15, 16, 17 and 18 of the statement of claim PW1 testified and adopted his written statement on oath which was made in line with facts pleaded in the statement of claim. By paragraph 5 of the statement on oath, PW1 averred that 1st Respondent was a long standing customer of the Appellant and operates a Naira Account No. 300030126 and Domiciliary Account No. 3100060194. I wish to note that this appeal relates to the Domiciliary (Dollar) Account only.
At the trial Court, 1st Respondent who was the plaintiff complained that its Dollar Account was blocked or freezed by the Appellant/Defendant without its knowledge. Plaintiff states that it placed several requests for transfer but defendant/appellant refused to honour it. That the Dollar Account remained inaccessible for about six months. As earlier noted Judgment was entered in favour of the 1st Respondent on the ground that Appellant was negligent in handling the customer’s account.
The issue now is has the 1st Respondent proved negligence on the part of the Appellant to be entitled to Judgment. In an action for negligence, the plaintiff must prove:
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(a) The existence of a duty of care owed to the plaintiff by the defendant.
(b) Breach of that duty of care by the defendant.
(c) Damages suffered by the plaintiff as a result of the breach by the defendant of that duty of care. See Edok-Eter Mandilas Ltd v Ale (1985)3 NWLR (Pt.11) 43; Okeowo v Sanyaolu (1986)2 NWLR (Pt.23) 471, Iyere v B.F.F.M Ltd (2008)18 NWLR (Pt.1119) 300, P.S.H.S.M.B v Goshwe (2013)2 NWLR (Pt.1338) 383.
The burden of proof of negligence falls on the plaintiff who alleges negligence. This is because negligence is a question of fact and it is the duty of the party who asserts it, to prove it. Failure to prove particulars of negligence pleaded is fatal to the case of the plaintiff. See Abubakar v Joseph (2008)13 NWLR (Pt.1104) 307.
In the case at hand, 1st Respondent set out the particulars of damage in paragraph 16 (a)-(1) and 17 of the statement of claim.
The Defendant/Appellant denied the fact that they were negligent, that they acted on Order of Court dated 12th May, 2015. The Appellant claimed that the freezing of the Domiciliary Account (Dollar) was not intentional.
From the pleadings and
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evidence adduced, 1st Respondent has established that Appellant breached the duty of care owed the 1st Respondent. 1st Respondent domiciliary account was freezed without the knowledge of the 1st Respondent. Appellant refused to respond to requests made by 1st Respondent to make transfers. This persisted for a period of six months. Appellant claimed that they acted on the order of Court dated 12th May, 2015 admitted as Exhibit D2. The learned trial Judge expunged Exhibit D2 after comparing same with the certified true copy admitted as Exhibit P7 which Court pronounced as genuine Exhibit D2 which is supposed to be the original had additions appearing on it only but the certified true copy had no such additions on it. Exhibit P7 had no instructions on it, that the 1st Respondent’s Dollar Account should be freezed. This instruction is however inserted on Exhibit D2. Exhibit D2 also bears two signatures of the Judge that signed the Court order, as well as signature of one Abdullahi Magaji bank official who carried out the confirmation. These signatures did not appear on Exhibit P7 the certified true copy. Appellant’s sole witness confirmed these
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additions found on Exhibit D2. DW1 stated under cross-examination as follows:
“I have seen Exhibit D2 and confirm that the Judges signature are in two places. The second signature is dated 14th May, 2015. I have seen Exhibit P7 again but there is no second signature of the Judge on it. I can see the signature of the registrar of the Court dated 27th December, 2015 on Exhibit P7. Same is not on Exhibit D2.”
The authenticity of Exhibit D2 was in issue. DW1 did not explain why the two documents bear different features. Appellant on the other hand did not find it fit to call the registrar of Court to confirm why two signatures of the Judge appeared on the order or Abdullahi the staff of the Appellant. The learned trial Judge found Exhibit D2 was questionable. Though Exhibit D2 and P7 were admitted without objection, the Court was right after evaluating the documents expunged Exhibit D2 since appellant failed to explain to the satisfaction of the Court that it was the original order. Having accepted Exhibit P7 as genuine and contained no instruction that appellant should freeze 1st Respondent’s Dollar Account, Appellant have therefore failed to
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adduce cogent and credible evidence in support of their defence. He who asserts must prove.
It is therefore my humble view that the findings of the learned trial Judge reproduced supra cannot be faulted. The learned trial Judge was right to hold that 1st Respondent had established negligence against the Appellant. I will resolve issue four in favour of the 1st Respondent.
Issue Five
That this issue borders on the damages awarded against te Appellant by the lower Court. Learned counsel submitted that there was no basis or justification whatsoever for the colossal award of N150,000.00 (One Hundred and Fifty Million Naira) general damages against the Appellant. Counsel argued that loss of profit or businesses are within the realm of special damages which must be specifically pleaded and strictly proved. That 1st Respondent failed to specifically plead the particulars of loss of business or profit. That 1st Respondent did not lead evidence in proof of same. That lower Court grossly erred in the award of damages against the Appellant as described. Reliance placed on NMA v Marine Management Association Inc. & Anor (2008) LPELR -4583 (CA);
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Gari v Seirafina (Nig.) Ltd (2008)2 NWLR (Pt.1070) @ 27 paras F-D 28 Para E. Counsel urged the Court to place reliance on Gari v Seirafina (Nig.) Ltd (Supra) and set aside the general damages erroneously awarded against the Appellant. Learned counsel further contended that the learned trial Judge considered irrelevant and extraneous factors in awarding the damages in question. That he considered the economic recession in Nigeria and the dwindling power of the Naira against the Dollar. He contended that the learned trial Judge was merely speculating as there was no evidence on record. See Edobor v Olotu (2012) LPELR -9288 CA); Ifeanyi Chukwu Osondu Co. Ltd & Anor v Dr. Joseph Akhigbe (1999) LPELR -1433 (SC). He urged the Court to resolve in favour of the Appellant.
On the part of the 1st Respondent, it was contended that issue No. 5 is incompetent having been raised from an incompetent or non-existent ground of appeal. That there is no ground of appeal challenging the quantum of damages awarded. Reference made to case of B.P (West Africa) Ltd v Akinola Allen (1961) ALL NLR 639. That issue No. 5 was distilled from non-existent ground of appeal. See Ajibulu v Ajayi
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(2014)2 NWLR (Pt.1392) 483 at 494 paras B-C.
Counsel contended that 1st Respondent Dollar Account which the Appellant blocked without legal authority is a business account as pleaded and proved. Reliance placed on Allied Bank v Akubueze (1997)6 SC 116 @ 141. That contrary to the position maintained by the Appellant, the learned trial Judge properly guided himself with laid down principles on the award of general damages. Counsel relied onAllied Bank (Nig.) Ltd v Akubueze (1997) 6 NWLR (Pt. 509) 374, Union Bank of Nigeria Plc v Chimaeze (2007) ALL FWLR (Pt.364) 303 at 333-334 paras H-C and Garba v Kur (2002)3 NWLR (Pt.831) 230 and contended that trial Judge can rely on dwindling nature of the naira in assessing damages. That Appellant did not show on any established authority that the learned trial Judge violated any principle in the award of general damages. He urged the Court to resolve the issue in favour of the 1st Respondent.
The complaint regarding the award of general damages is reflected in grounds 15 and 16 of the Amended Notice and Grounds of Appeal deemed filed on 07/06/2017. The grounds as couched are inelegant but the issue of award of
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general damages was raised as such I will consider it on the merit. See Orji v State (2019)13 NWLR (Pt.1688) 143 @ 110 paras E-H.
General damages are those damages which the law implies in every breach and every violation of a legal right. It is the loss which flows naturally from the defendant’s act and its quantum need not be pleaded or proved as it is generally presumed by law. The manner in which general damages is qualified is by relying on what could be the opinion and Judgment of a reasonable person in the circumstances of the case. See Osuji v Isiocha (1989)3 NWLR (Pt.111) 623 @ 636 paras C-D, Odulaja v Haddad (1973)11 SC 357 @300.
While special damages are specifically pleaded and proved, general damages are presumed by law to be the direct natural probable consequence of the act complained of and generally incapable of substantially exact calculation while in awarding general damages a trial judge must, make his own assessment of the quantum of such damages, he should do so in the light of the evidence before him and not base his award on speculative claim and scanty facts.
In the instant appeal, the 1st Respondent in paragraph 17 of
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the statement of claim (see page 20 of the printed record) pleaded that its business had been grossly and adversely affected, losing the opportunity to make profit and also loss of businesses suffered as a result of the freezing of the Dollar Account by the Appellant. I agree with Appellant’s counsel, that such damages fall within the realm of special damages, which must be specifically pleaded and strictly proved. It is true 1st Respondent did not specifically plead the particulars of its loss of business or profit and no evidence was led in proof of same. See Arabambi v A.B. Ind. Ltd (2005)19 NWLR (pt. 959)1 and NMA v Marine Management Associates Inc. & Anor (supra) cited by Appellant’s counsel. Both authorities are instructive on the settled principle of law that special damages must be pleaded and strictly proved. See also Gari v Seirafina (Nig.) Ltd (2008)2 NWLR (pt.1070)1 @ 27 paras F, page 28 Para E. It is my humble view that the award of N150,000.00 Million Naira special damages but termed general damages by the learned trial Judge is erroneous. 1st Respondent ought not to have been awarded special damages which was not claimed and
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proved as special damage. The particulars of the special damages ought to have been set out in the statement of claim.
However, as for award of general damages, 1st Respondent is entitled, having established negligence on the part of the Appellant. General damages would only be awarded against an adverse party if liability had been established, then the issue of quantum would come in. The freezing of the Dollar Account without lawful instruction or Court order and failure to notify the 1st Respondent that his account is inaccessible which resulted to financial inconvenience has given rise to breach of duty of care which would entitle it to general damages. It is settled law that an Appellate Court will not interfere with the award of damages made by a trial Court except in the following circumstances:
a) A trial Court has acted under a mistake of law,
b) The trial Court has acted in disregard of known principle or acted on no principle at all,
c) The Trial Court has acted under a misapprehension of facts,
d) The trial Court has taken into accounts irrelevant matters or failed to take account of relevant matters,
e) Injustice would
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result if the Appeal Court does not interfere, or
f) The amount awarded by the trial Court is either ridiculously low or ridiculously high that it must have been a wholly erroneous estimate of damages.
See MTN (Nig.) Comm. Ltd v C.C Investment Ltd (2015)7 NWLR (Pt.1459) 437 at 476.
Based on the reasons stated, I hold the view that this Court is entitled to interfere in the award of damages. Issue five is partly resolved in favour of the Appellant.
In the final analysis, it is my humble view that this appeal succeeds in part on issue five only, as it relates to award of damages. The Judgment of the High Court of Justice Plateau State delivered on 25th October, 2016 by D.D Longji J. in Suit No. PLD/J48/2015 is hereby affirmed except the order on award of damages. The award of N150,000,000.00 (One Hundred and Fifty Million Naira) special damages termed as general damages is hereby set aside. In its place, I award N10,000,000.00 as general damages against the Appellant. I also assess the sum of N100,000.00 (One Hundred Thousand Naira) as costs against the Appellant.
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MUDASHIRU NASIRU ONIYANGI, J.C.A.: My learned brother ADZIRA GANA MSHELIA, PJCA obliged me before now a copy of the judgment just delivered.
I agree entirely with the reasoning and conclusions arrived thereat and I abide by the consequential order made therein.
BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother ADZIRA GANA MSHELIA, J.C.A., and I am in agreement with his reasoning and conclusion, including orders as to costs. I have nothing useful to add.
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Appearances:
Nantok Dashuwar For Appellant(s)
C. Nwaiwu, with him, J. N. Jack (Miss) – for 1st Respondent.
I. I. Bless, with him, J. P. Mahwel Esq. (holding brief of Simon Lough Esq.) – for 2nd Respondent
For Respondent(s)
