FIRST BANK OF NIGERIA PLC V. ATUNRASE CARPETS & UNDERLAYS LIMITED (2011)

FIRST BANK OF NIGERIA PLC V. ATUNRASE CARPETS & UNDERLAYS LIMITED

(2011)LCN/4567(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 24th day of May, 2011

CA/I/105/98

RATIO

GROUND OF APPEAL: WHETHER THE FAILURE TO RELATE AN ISSUE TO THE GROUNDS OF APPEAL WILL AUTOMATICALLY RENDER SAME INCOMPETENT

The law is that failure to relate an issue to the grounds of appeal does not automatically render same incompetent. See: – Dada vs. Dosunmu (2006) 72 S.C.M. (pt. 2) 708. PER SIDI DAUDA BAGE, J.C.A.

EVALUATION OF EVIDENCE: WHETHER THE EVALUATION OF EVIDENCE CALLED AT THE TRIAL, THE ASCRIPTION OF PROBATIVE VALUES TO THEM AND MAKING PRIMARY FINDINGS ON THEM ARE MATTERS WITHIN THE PROVINCE OF THE COURT OF TRIAL

The avowed and age-long judicial policy in this country is that the evaluation of evidence called at the trial, the ascription of probative values to them and making primary findings on them are matters within the province of the court of trial which has the singular advantage or is preeminently placed of hearing the witnesses testify and watching their demeanours. See: – Balogun & ors. Vs. Alimi Agboola (1974) 1 All NLR (Pt. 2) 66; The Military Governor of Western States vs. Afolabi Lanibe & anor (1974) 7 All NLR (pt. 2) 179. For this reason, there is a presumption that a trial judge’s decision on facts is correct a presumption which must be displace by a person who seeks to upset the decision if he can. An appellate court for its part in such a case should always be reluctant to interfere or to substitute its view of the facts for those of the court of trial. See: – Ajao vs. Ajao (1986) 5 NWLR (pt. 45) 802; Kponuglo vs. Adja Kodaja (1933) 2. W.A.C.A 24. PER SIDI DAUDA BAGE, J.C.A.

GENERAL DAMAGES: CIRCUMSTANCE UNDER WHICH AN APPEAL COURT WILL INTERFERE WITH AN AWARD OF GENERAL DAMAGES MADE BY THE TRIAL COURT

On the attitude of appellate court to award of general damages by trial court See: – UBN PLC vs. Scopk (Nig. Ltd (supra) at page 449 ratio 21 where it was held as follows: “An award of general damages is a matter for the trial court and normally an appeal court will not interfere with such award unless: (a) Where the trial court has acted under a mistake of law; or (b) Where it has acted in disregard of principle or (c) Where it has acted under a misapprehension of facts or (d) Where it has taken into account irrelevant matters or failed to take account of relevant matters; or (e) Where injustice would result if the appeal court does not interfere, or (f) Where the amount awarded is either ridiculously low or ridiculously high that it must have been a wholly erroneous estimate of the damages. See: – Union Bank of Nigeria Ltd Vs Odusote Bookstores Ltd (1995) 9 NWLR (Pt. 421) 558; S.P.D.C. (Nig) Ltd vs Tiebo VII (1996) 4 NWLR (PT. 445) 657; Ijebu-Ode Local Government vs. Balogun (1991) 1 NWLR (Pt. 166) 136; Nzeribe vs Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) 124. PER SIDI DAUDA BAGE, J.C.A.

SPECIAL DAMAGES: WHETHER SPECIAL DAMAGES MUST BE PROVED STRICTLY; MEANING OF THE TERM “STRICT PROOF” REQUIRED IN PROOF OF SPECIAL DAMAGES

On the meaning and requirement of strict proof of special damages. See: Neka BBBMFG, Co. Ltd. vs. ACB Ltd (supra) at ratio 2 page 521. Special damages must be strictly proved. And the term “strict proof’ required in proof of special damages means no more than that the evidence must show the same particularity as is necessary for its pleading. It should therefore normally consist of evidence of particular losses which as exactly known or accurately measured before the trial. Strict proof does not mean unusual proof. It simply implies that a plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculation possible”. See also: Imana vs. Robinson (1979) 3 – 4 SC.1; U.B.N. vs. Odusote Bookstore Ltd. (7994) 3 NWLR (pt. 331) 129; Joseph vs. Abubakar (2002) FWLR (pt. 91) 7525; Okoronkwo vs. Chukweke (1992) 1 NWLR (pt. 216) 176. PER SIDI DAUDA BAGE, J.C.A.

JUSTICES

STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

FIRST BANK OF NIGERIA PLC – Appellant(s)

AND

ATUNRASE CARPETS & UNDERLAYS LIMITED – Respondent(s)

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Olatoye J. of the High court of Justice, Sagamu, Ogun state in suit No. HCS/120/95 FIRST BANK OF NIGERIA PLC VS ATUNRASE CARPETS & UNDERLAYS LIMITED, delivered on the 27th day of March, 1998, against the defendant, now appellant in this court.

The plaintiff, who is the Respondent herein, had before the trial court per his amended, statement of claim dated the 7th day of December 1995, claim against the defendant as follows:-

(a) The sum of N660, 000:00 and N3, 340, 000:00 as special and general damages respectively for negligence and breach of its Banker customer contractual relationship with the plaintiff.

(b) Particulars of special damage loss of net profit of N20, 000 per-days on its product for 33 days.

The gist of this case is that, the Respondent is a limited liability company engaged in the business of manufactures of carpet underlay at its Head office in Sagamu with branches in various towns in Nigeria. The respondent in the course of its business operations operate a current account for its business at the Sagamu branch of the appellant bank.

On or about the 29th day of May, 1995 the respondent issued a cheque in the sum of N123, 300:00 in favour of one Miss Seliat Busari to pay for raw materials for the respondent’s business which the suppliers had brought to the respondent’s head office factory at Sagamu. The raw materials which had been brought to the respondent were scarce in the country at the material time.

In spite of the fact that the respondent had more than enough funds in its credit at the Sagamu branch of the appellant, the appellant failed to honour the respondent’s cheque. By reason of the dishonouring of the cheque, the respondent’s customers who were waiting at the respondent’s office to collect money for the raw materials refused to sell the raw materials to the respondent.

The respondent accordingly lost the rare opportunity of buying the raw material and was also unable to produce for a period of thirty-three days before the respondent could get another opportunity of buying the scarce raw materials. As a result also the respondent lost some of its customers to its competitors.

By its writ of summons dated 5th September, 1995, the respondent instituted an action claiming against the appellant the following: –

“The sum of N660, 000:00 and N3, 340, 000:00 as special and general damages respectively for negligence and breach of the appellant’s banker customer contractual relationship as well as damages for injury to the respondent’s reputation as a result of the wrongful dishonour of the cheque.”

The parties exchanged pleadings and called witnesses in proof of their respective cases. On the conclusion of the hearing the learned trial judge entered judgment in favour of the respondent as follows: –

(a) N660, 000:00 as special damages

(b) N2, 500, 000:00 as general damages

Being dissatisfied with the judgment, the appellant filed this appeal by its Amended Notice of Appeal dated 25/10/2001. The Amended Notice of Appeal contains five grounds of appeal.

AMENDED NOTICE OF APPEAL

TAKE NOTICE that the Defendant (hereinafter called the Appellant, being dissatisfied with the judgment of the High Court of Ogun State Sagamu Judicial Division,’ presided over by the Honourable Justice E.O. Olatoye delivered on Friday the 27th day of March, 1998 hereby appeals to the Court of Appeal upon the Grounds set out in paragraph 3 below and will at the hearing of the Appeal seek the relief set out in paragraph 4. The Appellant further states that the names and addresses of the persons directly affected by the Appeal are those set out in paragraph 5.

2. PART OF THE DECISION OF THE HIGH COURT COMPLAINED OF:

The whole judgment.

(1) The learned trial judge erred in law when he held that the Plaintiff/Respondent discharged the burden of proof in this suit.

PARTICULARS

(a) The learned trial judge erred in law when he failed to consider the provisions of Section 2, 5, 57 and 73 of the Bills of Exchange Act, Cap. 35, Laws of the Federation, 1990 in his judgment. When sections 73 and 74 (1) of the Evidence Act, Cap. 112, Laws of the Federation expects him to have done so.

(b) The learned trial judge erred in law when he failed to consider the provisions of Section 149 (d) of the Evidence Act, Cap. 112, Laws of the Federation 1990 when the Plaintiff/Respondent failed, refused and neglected to provide the evidence of the payee of the cheque, one Miss Seliat Busari.

(c) The learned trial judge erred in law when he failed to consider the Defendant/Appellant’s evidence that the said payee of the cheque of her volition failed to collect the proceeds of the cheque after same had been cleared for payment.

(II) The learned trial judge erred in law when he awarded special and general damages in favour of the Plaintiff/Respondent.

PARTICULARS

(a) The learned trial judge erred when by Section 57 (a) of the Bills of Exchange Act, Cap. 35, Laws of the Federation all the damages he could award are: (i) the amount of the bill dishonoured, (ii) interest on that bill, and (iii) expenses of noting, where applicable.

(III) The learned trial judge misdirected himself in law and on facts when he awarded special damages of N660, 000:00 at N20, 000:00 per day for 33 days in favour of the Plaintiff/Respondent.

PARTICULARS

(a) All the trial court could award by way of damages are the amount (i.e value) and interest applicable to Exhibit A, both of which ought to have been treated as liquidated sums.

(b) There was no evidence placed before the lower court of the Plaintiff’s cost of production and sale, and on how it calculated its profits for 33 days, which days were inclusive of weekends and public holidays.

(c) The Plaintiff’s evidence at the trial did not conform with the averments in paragraphs 12, sub-paragraphs (h) and (i) of its Amended Statement of Claim dated 7th December 1995, wherein it pleaded reliance on its Sales Book in respect of carpet underlay, and its Production Analysis Book.

(d) In the absence of these documents and in the absence of evidence by Plaintiff’s production staff, salespersons and customers/ the Plaintiff could not be held to have proved special damages.

(e) The Plaintiff having proved no loss, no burden shifted on the Defendant to disprove Plaintiff’s claims on production.

(f) According to the evidence of PWI the chemicals, which the value of the cheque of 29/5/95 was purportedly supposed to pay for, were actually delivered.

(g) The evidence of PW1 as recorded on page 2 of the judgment of the lower court is that customers were waiting for the value of the cheque of 29/5/95, after the discharge of the chemicals. This is at variance with the averment in paragraph B of the Amended Statement of Claim where the Plaintiff stated that lack of funds denied Plaintiff the opportunity of buying raw materials needed for production for 33 days. Plaintiff offered no evidence that the said chemicals, which had, by PW1’s evidence, been delivered to the Plaintiff was retrieved.

(h) The learned trial judge failed to consider the contradiction between the pleadings and testimony offered in support.

(IV) The learned trial judge erred in law and misdirected himself on the facts when he said on page 9 of his judgment as follows:

“I am inclined to believe the story of the Plaintiff’s witness that when the payee of the cheque returned to office without the cash, he made enquiries about the balance in the Account. That letter is Exhibit B, and on it was written a sum of N12, 070.41”.

PARTICULARS

(a)The cheque ‘Exhibit A’ was written and presented on the 29th of May 1995, while Exhibit ‘B’ was written on the 5th of June 1995, a difference of seven (7) days, showing that contrary to the conclusion drawn by the learned trial judge, PW1’s enquiries were not made on 29th June 1995 when the payee of the cheque returned without the cash

(b) The trial judge was therefore wrong in believing the Plaintiff’s evidence on the enquiries made and failed to consider the time lapse between the presentation of the cheque and the issuance of Exhibit ‘B’.

(c) The trial judge failed to consider the Appellant’s evidence that the value of the cheque of 29/5/1998 being N123, 000.00 had been set against the Respondent’s account when the balance of N12, 070.41 was endorsed on Exhibit ‘B’.

(v) The findings of the court below are perverse.

PARTICULARS

(a) The learned trial judge awarded damages far in excess of what he could award in favour of the Plaintiff/Respondent.

(b) The learned trial judge accepted the damages that the cheque ‘Exhibit ‘A’ was written and presented on the 29th of May 1995, while Exhibit ‘B’ was written on the 5th of June 1995, a difference of seven (7) days, when contrary to the conclusion drawn by the learned trial judge, PW1 Made no enquiries when the payee of the cheque returned without the cash.

(c) The learned trial judge himself own made out a case of special damages for the Plaintiff when that was not established or proved by pleadings and evidence as no sales book or production book was tendered as pleaded no evidence of loss of income was put before the lower court.

4. RELIEF SOUGHT FROM THE COURT OF APPEAL.

An order setting aside the whole judgment of the High Court.

The Appellant had distilled the following issues for determination from the grounds of appeal above, as follows:-

(1) Whether the trial judge was not wrong when he held that the plaintiffs discharge the burden of proof in this suit to the effect that the Appellant was negligent in the non-payment of the Respondent cheque, a bill of exchange.

(2) Whether the judgment of the learned trial judge was not entered in disregard of the provisions of Section 149 (d) of the Evidence Act Cap. 112, in that the payee of the plaintiff’s cheque gave no evidence to contradict the evidence of DW1.

(3) Whether the learned trial judge properly directed himself as to the evaluation of the evidence in believing the evidence of PW1 when there were obvious inconsistencies between the oral evidence and the exhibits particularly exhibit B.

(4) Whether the learned trial judge properly directed himself as to the burden of proof of special damages having regard to the issues placed before him, in particular the oral evidence without move of PW1.

(5) Whether there was proper basis for award of N3, 160, 000 as total damages to the Respondent.

On the part of the Respondent, two issues were proposed for determination as follows: –

(1) Was the learned trial judge right in holding that the respondent discharged the burden of proving that its cheque was dishonoured by the appellant? This issue is covered by grounds 1 and 4 of the Notice of Appeal.

(2) Whether or not the learned trial judge was right in awarding the sum of N3, 160, 000:00 as special and general damages in favour of the respondent in the circumstances of this case and on the evidence before the trial court. This issue is covered by grounds 2 and 3 of the Notice of Appeal.

In addition at page 3, of its brief of argument, learned counsel to the respondent incorporated a Notice of preliminary objection.

NOTICE OF PRELIMINARY OBJECTION.

The respondent shall by way of preliminary objection contend

(i) That the appellant’s brief of argument dated 16th September, 2002 and filed on the 23rd September 2002 is incompetent and should be struck out;

ALTERNATIVELY

(ii) That issues No. ONE, TWO and FOUR are incompetent

(iii) That Ground V of the Grounds of Appeal is unknown to Law.

In arguing the preliminary objection learned counsel to the Respondent submitted that where a brief of argument has been filed but the Notice of Appeal was subsequently amended, the appellant is duty bound to apply for leave to file a consequential Amended Brief of Argument in order to incorporate the arguments on the new or amended grounds of appeal.

Learned counsel submitted further that, in the present appeal, the appellant filed its brief on 20th June, 2001 and thereafter obtained an order of this Honourable Court to file an Amended Notice of Appeal. The Amended Notice of Appeal was deemed properly filed on 20th February, 2002. The appellant without amending or withdrawing its brief dated 20th June, 2001 filed another brief on 23rd September, 2002. The appellant therefore has two briefs on record.

Learned counsel further submitted that, the appellant not having obtained leave to amend its brief cannot file another brief of argument as this is an abuse of the process of the court. The brief of argument filed on 23rd September, 2002 is therefore incompetent.

Learned counsel submitted further that if this honourable court is inclined to overrule the above objection, the respond shall further contend that issue one as argued is incompetent. The Supreme Court and this honourable Court has held in a number of cases that it is the issues and not the grounds that should be argued. See: – Odubeko vs. Fowler (1993) 7 NWLR (pt. 308) 637 at 653 paragraphs F – H.

Learned counsel submitted further that, the appellant in arguing issue One (1) at page 10 of its brief of argument made a heavy weather of section 73 and 74 (1) of the Evidence Act. Section 274 (1) (a) of the 1979 constitution and Sections 57 (a) and 73 of the Bills of Exchange Act, all in the bid to prove that the trial judge ought not to have awarded the sum of N2, 500, 000:00. None of these sections of the Laws cited or the arguments thereon proved the issue purportedly argued. See: – Oshatoba vs. Olujitan (2000) 5 NWLR (Pt. 655) 159 at 171 – 172 and 175 – 176; Weka vs SCOA Nig. Ltd (2000) 7 NWLR (Pt. 664) 325 at 349; Omo vs JSC. (2000) 12 NWLR (Pt. 682) 444 at 455; Mobil Producing Nig. Unlimited vs Asuah (2002) FWLR (Pt. 107) 1196 at 1211-1212

Learned counsel further submitted that, subsuming particular (a) under grounds one and two is over reaching and calculated to deceive the respondent as both should have been separate grounds of appeal. All arguments on them are incompetent as they are issues not raised before the trial court, and no leave was obtained to raise fresh issue on appeal. Federal Government of Nigeria vs. Zebra energy Ltd. (2002) FELR (pt. 92) 1749 at 1772; Yusuf vs. UBN Ltd. (1996) 6 NWLR (pt. 457) 632; Salami vs. Mohammed (20001) 9 NWLR (Pt. 673) 469 at 478.

Learned counsel submitted further that, the issues canvassed by the appellant on the Bill of Exchange Act constitute a special defence which must be specifically pleaded. See: – Kano vs. Oyelakin (7993) 3 NWLR (pt. 282) 399.

Learned counsel further submitted that, issue one does not relate to any ground of appeal as there is no ground of appeal complaining of any error (of law or fact) in discharging the burden of proof on negligence of the appellant. This court is urging to strike out issue One and all arguments thereon.

Learned counsel submitted further that, issue No. 4 is also incompetent and should be struck out as it does not relate to any ground of appeal. There is no ground of appeal complaining about the burden of proof of special damages as canvass under issue No. 4. The appellant cannot argue an issue not related to any ground of appeal. See: – Mobil Producing Nig. Unlimited vs Asuah (supra). There is nowhere in the judgment where the learned trial judge decided on burden of proof of special damages. He assumed that the burden was on the respondent.

Learned counsel further argued that, on issue two, there is no ground of appeal complaining against the non invocation of Section 149 (d) of the Evidence Act. At best the issue was raised as one of the particulars to ground one. Particular do not constitute the ground of appeal. Even if it is a ground of appeal, what is argued as issue No. 2 (two) is different from particular (b) to ground one of the grounds of appeal and is therefore incompetent. See:- Anero vs (1995) 1 NWLR (Pt. 370) 129 at 138 Anigala vs Abeh (1997) 7 NWLR (Pt. 611) 454 at 463.

In Reply to the Respondents Notice of preliminary objection learned counsel to the appellant submitted that the respondent’s objection to the brief in this appeal filed on 20th February, 2002 is misconceived. The Amended Notice of Appeal defines the issues in the appeal and the brief of argument filed in pursuant thereof is the only relevant brief for the purposes of the Appellant’s appeal. Logically, the former notice of appeal is no longer relevant and consequently, the former brief filed pursuant thereto must suffer the same fate although at the hearing of the appeal naturally the Appellant will formally seek of the Honourable court to withdraw the earlier brief now rendered otiose.

Learned counsel submits further that the filing of briefs in this court at all times material was regulated by the provisions of Order 6 of the court of Appeal Rules 2002; there is no support for all the Respondent’s objections and arguments in the said provisions.

Learned counsel further submitted that, the objection to issue 1 formulated by the Appellant is misconceived because the issue arises and flows from the complaint of the Appellant in Ground 1 and 2 of its grounds of appeal. The said grounds complain about the error of the trial court in its finding that, the Appellant was negligent in its failure to honour the Respondent’s cheque.

Learned counsel further submitted that, the central and core issue before the trial court was whether the Appellant negligently dealt with EXHIBIT ‘A’, the court made a finding in favour of the Respondent on this issue with which the Appellant is aggrieved hence this appeal. No aspect of such complaint on appeal can be considered to be a fresh issue on appeal because the Lower Court dealt with all aspects of the issue.

Learned counsel submitted further that, there is no merit in the Respondent’s objections to issues 2 and 4 of the Appellant’s issues for determination as the issues are formulated upon and properly arise from grounds (i) (ii) & (iii) of the Appellant’s grounds of appeal.

Learned counsel submitted further that, the objection to Ground 5 of the Appellant’s grounds of appeal is without justification. The complaint of the Appellant is clear and the Respondent is not misled as to its nature. The law is well settled that once the parties are not misled by the contents of a ground of, appeal, complaints about form become a mere technicality once a miscarriage of justice is not occasioned. See: – Obiodu vs, Duke, (2006) 1 NWLR (pt. 961) 375. The ground of appeal is not in violation of Order 3 rule 2 (I) – (4) of the court of Appeal Rules, therefore it is not liable to be struck out.

Learned counsel further submitted that the, said Ground V (5) does not raise any fresh issue for which leave is required and the Appellant had no duty to plead the provisions of the Bill of Exchange Act specifically as a defence once the factual situation exists to which the provisions of the Act may be applied. It is not necessary to plead statutes and sections thereof expressly. It is sufficient if the material facts which will lead to a certain legal result are pleaded. Once such material facts have been pleaded, the inference to be drawn from such pleaded facts and the particulars of the law to be relied upon for such an inference need not be pleaded. See: – Anyanwu vs Mbara (1002) 5 NWLR (Pt. 242) 386; Okenwa vs Military Governor, Imo State (1996) 6 NWLR (Pt. 455) 394; Admin/Executive Estate, Abacha vs. Ike Spift (2003) 1 NWLR (Pt. 800) 134, at 187; A.B.U. VS Moloukwu (2003) 9 NWLR (Pt. 825) 265 at 284.

This court carefully examines the Respondents Notice of preliminary objection and the appellant’s reply thereto. The object of the rule of court on the notice of preliminary objection is to give the appellant before the hearing of his appeal, notice of any preliminary objection to the hearing of his appeal, and the grounds thereof. This is to enable the appellant prepare to meet the objection at the hearing of the appeal.

However, to warrant giving of Notice of preliminary objection, the objection should be such that goes to the root of the appeal. The objection must be such that is capable of preventing the hearing of the appeal. Not when the objection affects only one of grounds of appeal, when even, if sustained may not affect the hearing of the appeal, See: – Effiong vs. Ironbar (1998) 13 NWLR (pt. 582) 367; James vs. I.G.P, (2005) 41 WRN 78 at 93.

As earlier shown, the preliminary objection being raised by the respondent relates to issues 1, 2 and 4 formulated by the Appellant for determination of this appeal. Also affected is ground 5 of the Appeal. The objection to the incompetent issues and the ground are as follows:

(i) That the appellant’s brief of argument dated 16th September, 2002 and filed on 23rd September, 2002 is incompetent and should be struck out.

Alternatively

(i) That issues No. ONE, TWO and four are incompetent.

(iii) That ground V of the Grounds of Appeal is Unknown to law.

The 1st point of objection relates to the amendment of the Notice of Appeal, whether it constitutes a new Notice of Appeal. The law is already settled that an amended Notice of Appeal is certainly not a new Notice of Appeal. This is because and this is also firmly settled that an Amendment relates back to the date in which the document was originally filed just like an amended statement of claim. In other words it is retrospective. See: – Unity Bank PLC & Anor vs Bouari (2008) 2-3 S.C. (Pt.11) 1; the National Assembly vs. The President of the Federal Republic of Nigeria (2003) 41 WRN 94; Oladiti vs Sungas Co. Ltd (1994) 1 NWLR (Pt.321) 433; Globe fishing Ind. Ltd. vs. Coker (1990) 7 NWLR (Pt.162)265; Taoridi vs. Animashaun (2000) 14 NWLR (pt. 688) 650.

From the above therefore the Respondent is wrong to contend in his Notice of preliminary objection that since the Notice of appeal was amended the appellant’ is duty bound to apply for leave to file a consequential Amended brief of argument. The amendment take a retrospective effect, the former notice of appeal filed is no longer relevant and consequently, the former brief filed in pursuant thereto must suffer the same fate. I agree with the Appellant/Respondent in this submission, what the Appellant may simply seek to do formally in court is to withdraw the earlier brief now rendered Otiose. It is wrong to say the Appellant had two briefs alive; it was dead with the former Notice of appeal. Ground 1 of the Notice of preliminary objection therefore fails.

On the second (2nd) and third (3rd) point of the preliminary objection. On the 2nd point dealing with issues one, two and four of the Appellant’s brief of argument. The point must be made right away that objection to issues formulated is not taken at preliminary stage but at the hearing of the appeal proper. In other words, the preliminary objection at this stage is not only premature but rather very unnecessary. The law is that failure to relate an issue to the grounds of appeal does not automatically render same incompetent. See: – Dada vs. Dosunmu (2006) 72 S.C.M. (pt. 2) 708.

On the 3rd point of the objection dealing with Ground five of the appeal. I had stated earlier on that objection must be such that is capable of preventing the hearing of the appeal. Not when the objection affects only one of grounds of appeal, which even if sustained may not affect the hearing of the appeal. See: – Effiong vs. Ironbar (supra). This 3rd point has no basis affecting the hearing of this appeal and it equally fails.

In the circumstance and without any further ado on the issue, the objection is accordingly overruled.

Now to the main appeal, from the grounds of Appeal filed, the Appellant formulated Five issues for determination listed out earlier in this judgment.

In arguing the appeal the learned counsel to the Appellant took the issues seriatim.

In arguing issue 1 on whether the trial judge was wrong when he held that the plaintiff discharged the burden of proof in this suit to the effect that the Appellant was negligent in the non-payment of Respondent’s cheque, a bill of exchange he submitted that if Exhibit ‘A’ is a bill of exchange, within the meaning of section 73 of the Bills of Exchange Act, and if the Appellant was liable in dishonouring the same (which is denied) then the remedy open to the Respondent is not as awarded by the trial court, but as contained in section 57 (a) of the Bills of Exchange Act.

It therefore means that the only award the trial court ought to have made in favour of the Respondent was the amount of Exhibit A and interest there on, and not the sum of N2, 500, 000:00 it awarded as general damages. The award and measure of damage under section 57 of the Bills of Exchange Act does not include the award of general damages; and that what is permissible is liquidated damages. See: – Union Bank of Nig. PLC vs. Scpok (Nigeria) Limited (1998) 12 NWLR (Pt. 578) 439 at 471 paragraphs A-8.

Learned counsel submitted further that, if Exhibit A were a bill of exchange proof of Respondent’s case lie in leading evidence on the cheque being a bill of exchange and claiming damages under section 57 Bill of Exchange Act. See: – Union Bank of Nigeria PLC. Vs, Scpok (supra).

Learned counsel submitted that, given the provisions of section 57 of the Bills of Exchange Act, and the failure of the trial judge to apply the same, this court can interfere with the lower court’s award of general damages. This principle was laid down in Union Bank of Nigeria Ltd. Vs. Odusote Book Stores Ltd. (1995) 9 NWL.R (pt. 42I) 558 at 586 paragraphs E-G.

Learned counsel submitted further that, the trial judge’s award cannot be justified in view of the evidence before the court. The Supreme court in Odumosu vs. African continental Bank Ltd. (1976) 11 S.C. 55 laid down the clear principle of what an award of damages is not. Damages are awarded on sound principles of law, not on speculation, sentiments or as Father Christmas. This court is urging to set aside the award of N2, 500, 000:00 general damages as having been wrongly awarded.

In response to the arguments of the Appellant in issue one (1) learned counsel to the Respondent submitted that on the evidence before the court. It is very clear that the respondent had enough funds in it account when it issued the cheque for payment of N123, 300:00. As a matter of fact the respondent had a credit balance of N154, 278.92 in its account notwithstanding the said credit balance, the appellant did not honour the respondent’s cheque Exhibit ‘A’.

Learned counsel submitted further that, on the respondent showing that it has sufficient funds in its account as at the time Exhibit A was dishonoured, the respondent has in law discharged its evidential burden on it. And the onus then shifts on the appellant bank to show that there was legal impediment to justify the non-payment or dishonour of the cheque.

This above legal position was affirmed by this court in the case of DIKE VS. A.C.B. LTD. (2000) C.I.R.Q, Commercial Law Reports Quarterly page 72 at page g4 paragraphs B-E.

Learned counsel submitted further that on the authority of DIKE vs. ACB (supra) that it was for the appellant to have called the payee of Exhibit A Miss ‘Seliat Busari to give evidence in justification of the appellant’s refusal to honour Exhibit A since the evidential burden of justifying the refusal to honour the cheque Exhibit A was on the appellant.

See: – UBA VS. UBN PLC (1995) 7 NWLR (PT. 405) 72 at paragraphs 80-87. Rather than discharge the evidential burden on it, the appellant has argued that the court should invoke the provisions of Section 149 (d) of the Evidence Act to come to the conclusion that the failure of the respondent to call the said payee of the cheque, meant that her evidence would have been unfavourable to the respondent. On the recent decision on the purport of section 149 (d) of the Evidence Act See: – C.B.N vs Archibong (2001) 10 NWLR (PT. 721) 492 at paragraph 570 – 577 paragraphs D – A.

Learned counsel further submitted that the appellant had relied heavily on the case of UBN PLC vs. Scpok Nig. Ltd. (supra) and section 57 of the Bill of Exchange Act, in determine the general damages assessed at N2, 500, 000:00 in favour of the Respondent by the trial court. In Scpok’s case above, this court held that the damages recoverable for the wrongful dishonour of a cheque is liquidated damages by virtue of section 57 of the Bills of Exchange Act, Cap. 2 Laws of Federation 1990. With the greatest respect, the above decision were reached without regard to the authoritative decisions of the Supreme Court in Balogun vs. National Bank of Nig. Ltd. (1978) 3 SC 755, and Allied Bank (Nig.) Ltd vs. Akubueze (7995) 4 NWLR (pt. 309) 493.

Learned counsel submitted further that, the said section 57 of the Bills of Exchange relates to a specific set of people and circumstances to which the respondent’s case does not fit in section 57 operates where:

(a) A holder (in this case Seliat Busari) claims against any party liable:

(b) A drawer who has been compelled to pay on the bill claims against acceptor.

The respondent is a drawer but not one who has been compelled to pay on the bill. It therefore does not come within any of the categories of people to whom section 57 is applicable. Its case is strictly that it was unable to pay for chemicals (raw materials) and not that it was compelled to pay the amount on the bill. See: – Agbanelo vs. Union Bank PLC. (2000) FWLR (pt. 13 2797 at pp, 2225 paragraphs B – E. It is pertinent to state that the apex court did not decide in this case that the damages awardable are as contained in section 57 of the Bills of Exchange Act (supra).

Learned counsel submitted further that, like the plaintiff/appellant in the Agbanelo’s case, the respondent did not predicate its case on the provisions of the Bills of Exchange Act. The respondents claim as earlier stated are simply for special and general damages for negligence and breach of the appellant’s banker customer contractual relationship and for damages to the respondents reputation.

Learned counsel submitted further that, this court is urged to hold that the correct principles of law on the measure of damages for wrongful dishonour of cheques where the plaintiff is a trader or a person in business are as stated in the cases of Balogun vs. NBN (supra) Allied Bank of Nigeria Ltd. vs. Akabueze (supra) and Agbanelo vs. Union Bank (supra).

Learned counsel submitted further that in the present case, the respondent, a limited liability company is in business of trading. Additionally, the respondent pleaded and led evidence of the actual damage suffered by it by reason of the wrongful dishonour of Exhibit ‘A’. The damage consists of injury to the respondent’s reputation which the law even presumes, loss of business opportunities and loss of its customers to its competitors.

In determining this issue, the crux of the argument of both the Appellant and Respondent, is whether in handling Exhibit ‘A’ the cheque No SE/2/218893 a First Bank Cheque of 29th May, 1993 issued by the Respondent, the Appellant was negligent. The Respondent pleaded Exhibit A as a cheque (paragraph 4 of the Amended statement of claim at page 8 of the record and led evidence on it. Section 73, Bills of Exchange Act, Cap. 35, Laws of the Federation 1990 provides that:

“A cheque is a bill of exchange drawn on a banker payable on demand and except as otherwise provided in this part, the provisions of the Act applicable to a bill of exchange payable on demand apply to a cheque”.

Also section 3 (1) of the Bills of Exchange Act defines a bill of exchange as: –

“An unconditional order in writing addressed by one another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to or to the order of a specified person or to bearer”.

From the evidence at the trial court, the bearer of the disputed cheque was Seliat Busari a staff of the respondent. The bone of contention in this appeal is whether Seliat Busari who presented the cheque for payment to the Appellant which is an unconditional order, to pay on demand by section 3 of the Bills of Exchange Act (supra) could have stopped the payment the Respondent’s cheque she presented in the first place. The avowed and age-long judicial policy in this country is that the evaluation of evidence called at the trial, the ascription of probative values to them and making primary findings on them are matters within the province of the court of trial which has the singular advantage or is preeminently placed of hearing the witnesses testify and watching their demeanours. See: – Balogun & ors. Vs. Alimi Agboola (1974) 1 All NLR (Pt. 2) 66; The Military Governor of Western States vs. Afolabi Lanibe & anor (1974) 7 All NLR (pt. 2) 179. For this reason, there is a presumption that a trial judge’s decision on facts is correct a presumption which must be displaced by a person who seeks to upset the decision if he can. An appellate court for its part in such a case should always be reluctant to interfere or to substitute its view of the facts for those of the court of trial. See: – Ajao vs. Ajao (1986) 5 NWLR (pt. 45) 802; Kponuglo vs. Adja Kodaja (1933) 2. W.A.C.A 24.

From the evidence given on behalf of Seliat Busari the bearer of the disputed cheque, and Exhibit ‘C’ the photocopy of the printed statement of Account of the Respondent as at 29/5/95 given by the Appellant itself, and the balance on the statement of Account was N154, 278:92. The respondent’s cheque issued to the Appellant as at 29/5/95 was for the sum of N123, 300:00 which comfortably can be accommodated as a credit balance, I do agree with the trial court’s view in its judgment that the Appellant was negligent in not paying for the cheque as was instructed by the Respondent.

Now that this court agrees with the finding of the trial court that the Appellant was negligent in handling the instructions given by the Respondent on the 29/5/95 by dishonouring as instructed in Exhibit ‘A’ the disputed cheque, was the measure of consequential general damages in the sum N2, 500, 00:00 awarded by the court at page 54 of the record appropriate.

No doubt the relationship between the Appellant and Respondent, the Banker/Customer is one regulated by the law. The constitution of the Federal Republic of Nigeria 1999 with 2011 1st and 2nd Alteration section 315 (1) provides:

“Subject to the provisions of this constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this constitution …”

The Bills of Exchange Act, Cap. 35 Laws of the Federation 1990 is such existing laws. Section 73 of the Bills of exchange Act (supra) provides: –

On the measure of damages recoverable on a dishonoured bill, the locus classicus is the case of Union. Bank of Nigeria PLC. Vs. Scpok Nigeria Ltd. (1998) 12 NWLR (pt. 578) 439 at 449 ratio 20 where in it was held.

“By virtue of section 57 of the Bills of Exchange Act where a bill is dishonoured, the measure of damages shall be deemed to be liquidated damages. The holder may recover from any party liable on the bill and the drawer who has been compelled to pay the bill may recover from the acceptor and endorser who has been compelled to pay the bill, may recover from the acceptor or from the drawer, or from a prior endorser: –

(a) The amount of the bill,

(b) Interest thereon from the time of presentment for payment if the bill is payable on demand and form the maturity of the bill in any other case; and

In the instant case, there is much force in the argument as to the contention of the appellant that award and measure of damages under section 57 Bills of Exchange Act does not include general damages.

What are permissible are liquidated damages.”

The decision in the case of UBN PLC vs. Scpok (supra) stated above is in fours with the present appeal. The trial judge failed or neglected to be guided by the existing law of the land in view of the special relationship between the parties governed by the Bills of Exchange Act (supra) and the damages determinable by section 57 of the Act. The trial judge stated as follows at page 60 of the records: –

“However I will take cognizance of the fact that the sum of N660, 000 has been awarded earlier in this judgment as special damages. I therefore award a sum of N2, 500, 000:00 as general damages in favour of the plaintiff”

Firstly the law is that where a statute provides a mode which an action must be commenced, legal proceedings cannot be commenced other than that prescribed by the statute. An action instituted not stipulated by the statute is not maintainable. A claimant who might have a cause of action looses the right to enforce it by judicial process. See: – Eboigbe vs. NNPC (1994) 5 NWLR (Pt. 347) 649 at 658 and 659 D-E; Odubeko vs Fowler (1993) 7 NWLR (Pt. 308) 637; Oke vs Oke (2006) 4 NWLR (pt. 7008) 224 at 242 C-D.

On the attitude of appellate court to award of general damages by trial court See: – UBN PLC vs. Scopk (Nig. Ltd (supra) at page 449 ratio 21 where it in it was held as follows:

“An award of general damages is a matter for the trial court and normally an appeal court will not interfere with such award unless:

(a) Where the trial court has acted under a mistake of law; or

(b) Where it has acted in disregard of principle or

(d) Where it has taken into account irrelevant matters or failed to take account of relevant matters; or

(e) Where injustice would result if the appeal court does not interfere, or

(f) Where the amount awarded is either ridiculously low or ridiculously high that it must have been a wholly erroneous estimate of the damages.

See: – Union Bank of Nigeria Ltd Vs Odusote Bookstores Ltd (1995) 9 NWLR (Pt. 421) 558; S.P.D.C. (Nig) Ltd vs Tiebo VII (1996) 4 NWLR (PT. 445) 657; Ijebu-Ode Local Government vs. Balogun (1991) 1 NWLR (Pt. 166) 136; Nzeribe vs Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) 124.

Having regard to those factors listed above where an appeal court can interfere with the award of general damages by the trial court UBN vs. Scpok (supra) the present appeal falls in the category where such award of general damages was made by the trial judge either by mistake of law, or disregard to its principle or misapprehension of the facts. In view of that therefore this court has set aside the award of N2, 500,000:00 as general damages awarded by the trial court in favour of the respondent. In place of the general damages awarded, this court has in accordance with section 57 (a) of the Bills of Exchange Act (supra), awarded to the Respondent as follows:

(i) The amount of the Bill (cheque)

(ii) Interest thereon from the time of presentation for payment if the bill is payable on demand and from maturity of the bill on any other case

(iii) The expenses of noting or when protest is necessary and the protest have been extended, the expenses of protest.

It is very clear that section 57 (a) of the Bills of exchange Act (supra) cited above was lifted from section 57 (1) of the English Bills of Exchange Act 1882. See: – Halsbury’s Laws of England Fourth Edition at page 222 paragraph 502 not which provides thus: –

“The damages to be recovered are deemed to be liquidated damages, and they may include;

(1) The amount of the instrument

(2) Interest thereon from the time of presentation for payment if the instrument is payable on demand and form its maturity in any other case, the interest claimed by way of damages may, however be with held wholly or in part if the justice of the case so required, and where the instrument is expressed to be payable with interest at a given rate, interest as damages may or may not be given at the same rate. And

(3) The expenses of noting, or when protest is necessary and the protest have been extended the expenses of protest. ”

It is to be noted that what the law requires is general damages to be with held wholly or in part if the justice of the case so requires. Therefore where the justice of the case so requires as is the case with the present appeal, wherein ‘in this judgment, the Appellant have been found to be negligent for dishonouring the cheque of the Respondent, in addition to the claim for liquidated damages it would appear from the law that unliquidated damages for breach of contractual duty of banker to honour her customers cheques can also be claimed under the same section 57 (a) of the Bills of Exchange Act (supra) See: – Agbanelo vs. Union Bank plc. (2000) FWLR (pt. 13) 2197 at 2225 referred. Wherein the Supreme Court remitted the case to the trial court to ascertain if the damages claimed were recoverable and the quantum of damages recoverable where the case was framed;

“for breach of contract arising for (sic) from the negligence of the Defendant.

Also the case of Allied Bank (Nig.) Ltd. vs. Akubueze (1997) 6 NWLR (pt. 509) 374 at pp. 404-405, the Supreme Court awarded damages of N25,000 for wrongful dishonour of a trading customer of appellant bank when it held inter alia

“It would therefore appear that apart from liquidated damages under section 57 (a) of the Bills of Exchange Act (supra) other heads of claim sounding in unliquidated damages may be claimed in by the customer for breach of contract arising from the wrongful dishonour of his cheque by his banker. ”

Following this decision of the Apex Court, which circumstances are similar to the present appeal and the justice of this case requires on award of damages to the Respondent for the negligence conduct of the Appellant. The amount of N2, 500, 000:00 awarded by the trial court is found to be ridiculously high, having regard to the fact that the Respondent is still entitled to the liquidated damages under section 57 (a) of the Bills of Exchange Act (supra), this court has awarded the sum of N250, 000:00 as unliquidated damages in favour of the Respondent against the Appellant for its negligence in dishonouring his cheque.

On issue No. 4 which is the Appellants contention that the evidence adduced by the Respondent in proof of special damages falls short of the standard required by law. Learned counsel to the Appellant submitted that by paragraph 12 (h) and 12 (i) of its Amended statement of claim (pages 8-9 of the record) Respondent indicated its intention to rely on its sales book in respect of carpet – underlay, and production analysis book in proof of special damages. No such documents were tendered. The Appellant submits that in so far as it failed so to do, the learned trial judge misapplied the law in accepting that special damage was proved. Reliance is placed on section 149 (d), Evidence Act and in Alam Oparaji (supra).

Learned counsel submitted further that the evidence of PW1 on special damages did not lend itself to quantification. Given the type of business in which the loss was purportedly suffered. It was important for the Respondent to have produced evidence of previous production of the claimed capacity, and evidence of total sales per day indicating profit margin.

Learned counsel submitted further that, the failure to do as above is contrary to the general principle laid down in E.K. ODULAJA VS A.F. Hadded (1973) All NLR 836 at 840; Oshijinrin & Ors vs Alhaji Elias 7 ors (1970) All NLR 758; and J.O.O Imana vs. Madam Robinson (1979) All NLR 1 at 16-18. The award of N660, 000:00 as special damage was an unproven award.

Learned counsel submitted further that the cases relied upon to the Lower Court to writ Oshinjinrin vs. Elias (supra) H.N, Nzeribe vs. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) 124, and Dumez Nig. Ltd vs. Patrick Ogboli (1972) All NLR 244 do not support the finding of the lower court in that all three cases adequate proof of special damages was presented to the court. The evidence of PW1 cannot be accused of falling into this category. The Appellant will argue that this evidence is at best speculative as no credible evidence of such a character as would suggest that Respondent was entitled to an award under the legal classification of special damages was presented. See: – Dictum of Coker JSC (as he then was) in OSHINJINRIN’S case between lines 9 -74 page 161 of the report (supra).

Learned counsel submitted further that, the trial court did not direct itself properly as to the burden of proof on the Respondent. It was the duty of the Respondent to prove special damages on the evidence it brought to court. Failure to discharge which burden does not shift onus on the Appellant. Appellant seeks to rely on section 135 of the Evidence Act and the decision in Elias vs. Disu (7962) 1 AII NLR 274 at 219 – 220 to the effect that the Respondent did not discharge the burden of proof of special damages.

Learned counsel further submitted that in so far as Respondent adduced no evidence quantifying its claim of special damages no burden shifts to the Appellant, therefore nothing is available to the Appellant to disprove. On a proper direction, the lower court should have held that the Respondent did not discharge the onus of proof on it.

On the side of the Respondent with regard to special damages, learned counsel submitted that the respondent gave evidence in support of the loss of business opportunities and profit, that evidence of the respondent was not challenged at all by the appellant under cross-examination or in any other way what-so ever. Therefore where evidence of special damages remains unchallenged it will be deemed to have been duly proved. See: – Audu vs. Okeke (1998) 3 NWLR (pt. 542) 373 at 383 paragraphs A-B-H.; Arava vs. Eleiba (1986) 7 NWLR (pt. 16) 333.

Learned counsel submitted further that the award of general damages is supported by law and the award does not constitute double compensation. Double compensation occurs where a plaintiff is granted compensation more than once for what are substantially the same matters. It means awarding damages in respect of the same injury under two separate heads of damages.

Learned counsel further submitted that, the second type of injury is the loss of business opportunities which in this case consist in the liability of the respondent to buy raw materials and to produce for thirty three days. This is a case of actual injury in respect of which the respondent gave evidence in line with its pleadings at the trial. See: – L.C.C. vs. Unachukwu (1978) 3 5C 199 at 206-207.

The issue to be resolved here is the contention by the Appellant that the proof of special damages by the respondent falls short of the standard required by law, that paragraph 12 (k) and 12 (i) of its Amended statement of claim (pages 8-9) of the records, respondent indicated its intention to rely on its sales book in respect of Carpet Underlay, and production analysis book in proof of special damages. No such documents were tendered. It is contended that in so far as it failed so to do, the trial judge misapplied the law in accepting that special damage was proved.

The Respondent however contended that it gave evidence in support of the loss of business opportunities and profit, that evidence was not challenged at all by the appellant under Cross-Examination, or in any other way, whatsoever. Therefore where evidence of special damages remains unchallenged it will be deemed to have been duly proved.

The position of the law in respect of proof of special damages is that it must be specifically pleaded and strictly proved. In other words the plaintiff should sufficiently particularize it to enable the court decide whether all or part of it can be granted and should establish his entitlement to special damages by credible evidence. See: – Neka BBB M FG Co. Ltd. vs. ACB Ltd. (2004) 2 NWLR (pt. 858) 521 at 557; Joseph vs. Abubakar (2002) FWLR (pt. 19) 1525 at 1542; Okoronko vs. Chukwueke (1992) 1 NWLR (pt. 276) 175.

In satisfaction of the requirement of the law, the Respondent adequately pleaded the special damages in paragraph 12 (k) and 12 (i) of its Amended statement of claim (pages 8-9 of the records).

The next stage is the strict proof. In other words, the plaintiff (respondent in this court) should sufficiently particularize the special damages to enable the court decide whether all or part of it can be granted. On the meaning and requirement of strict proof of special damages. See: Neka BBBMFG, Co. Ltd. vs. ACB Ltd (supra) at ratio 2 page 521.

“Special damages must be strictly proved. And the term “strict proof’ required in proof of special damages means no more than that the evidence must show the same particularity as is necessary for its pleading. It should therefore normally consist of evidence of particular losses which as exactly known or accurately measured before the trial. Strict proof does not mean unusual proof. It simply implies that a plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculation possible”. See also: Imana vs. Robinson (1979) 3 – 4 SC.1; U.B.N. vs. Odusote Bookstore Ltd. (7994) 3 NWLR (pt. 331) 129; Joseph vs. Abubakar (2002) FWLR (pt. 91) 7525; Okoronkwo vs. Chukweke (1992) 1 NWLR (pt. 216) 176″

The basic issue here is giving the defendant the access to the facts which makes such calculation possible.

The Respondent as plaintiff in the trial court with regard to the special damages gave evidence in support of the loss of business opportunities profit thus: –

“I have several customers from within and outside the country who have paid for the goods (Underlay awaiting collection. Because of the action of the bank, I was humiliated by my customers for disappointing them. We lost 33 days of production.

We produce 2000 square metres of Carpet Underlay daily. We realize N20, 000 profits daily. For the 33 days my company lost N660, 000:00. I also lost several customers to my competitors my reputation was badly damaged. The reputation of the company was also involved because I represent the company”.

The respondent maintained this evidence was not challenged at all by the appellant under-Cross examination or in any other way whatsoever. Where the evidence of special damages remains unchallenged, it will be deemed to have been duly proved.

Based on this assertion of the Respondent, the learned trial judge at page 50 of the records held as follows:

“Therefore in this matter, I hold that the evidence from the plaintiff and the circumstances of this case make it credible that the plaintiff is entitled to the special damages of N660, 000:00 claimed herein.”

The Appellant maintained it was not given access to fact which makes the calculation of the special damages possible. It stated that at paragraph 12 (K) and 12 (i) of the Respondent (then plaintiffs’) Amended statement of claim (pages 8-9) of the records, the respondent indicated its intention to rely on its sales book in respect of Carpet Underlay, and production analysis book in proof of special damages. No such documents were tendered. Appellant contended that in so far as it failed so to do, the trial judge misapplied the law. This court has no difficulty in agreeing with the submission of the Appellant that the trial judge misapplied the law in his award of the special damages to the Respondent. The Respondent had copiously pleaded in paragraph 12 (k) and 12 (i) of its Amended statement of claim that it intends to rely on certain documents to wit sales book, and production analysis in proof of the special damages. The Appellant contended and the totality of the evidence before the court has not shown those documents were ever tendered before the trial court. The oral evidence of the Respondent for whatever circumstance as suggested by the trial judge cannot be sufficient for the award of the special damages. What may suffice is that documentary evidence pleaded by the Respondent, which the Appellant was denied access of. On the authority of Neka BBB vs. ACB (supra) and all the other authorities that followed it cited above by this court, this court has no difficulty in setting aside the award of special damages of N660, 000:00 made by the court in favour of the Respondent against the Appellant. This court has also resolved issue No. 4 in favour of the Appellant.

Having dealt with issues 1 and 4 of the Appellant’s brief of argument, this court has decided on the three (3) main contentions in this appeal to wit: –

(a) The issue of negligence

(b) The issue of the award of general damages by the trial court.

(c) The award of special damages by the trial court. There is nothing left again for the decision of this court in this appeal.

All the arguments proffered in relation to issues No. 2, 3, and 5 amounts only to an academic exercise.

On the whole this Appeal succeeds in part, and this court makes the following orders:

(1) This court finds the Appellant negligent in dishonouring the Respondent’s cheque No. SE/2/218893 of 29th May, 1995.

(2) This court has awarded the liquidated damages in favour of Respondent against Appellant provided by section 57 (a) of the Bills of Exchange Act Cap. 35, Laws of the Federation 1990;

Which provided for the amount of the bill (the cheque) the interest there on from the time of presentation for payment since the bill is payable on demand, the expenses of noting, or when protest is necessary, and the protest has been extended, the expenses of protest.

(3) This court has awarded the sum of N250, 000:00 in favour of the Respondent against the Appellant for negligence of the wrongful dishonouring of a trading customer’s cheque by the appellant.

(4) This court has set aside the award of special damages of N660, 000 made in favour of the Respondent against the Appellant by Olatoye J, in his judgment (the subject of this appeal) in suit No. HCS/120/95 delivered on the 27th March 1998.

(5)There is no order as to costs.

STANLEY SHENKO ALAGOA J.C.A.: I agree.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in draft the detailed judgment prepared by my learned brother, Bage, J.C.A, in which I concur with these few words, by way of emphasis.

The appellant bank was negligent by her refusal to honour the cheque presented by an employee of the respondent when there was enough credit in the respondent’s account with appellant bank to meet the amount on the cheque. A cheque has been defined as a “prescribed instrument” under section 2 (1) of the Bills of Exchange Act (CAP 35) Laws of the Federation of Nigeria, 1990, and recognized as such as a bill of exchange. Halsbury’s Laws of England (4th Edition) Volume 4 page 130 paragraph 306 also defines a cheque in similar terms thus:

“A cheque is a bill of exchange drawn on a banker payable on demand.” The legal consequences of dishonouring a bill of exchange are stipulated in section 57 (a) of the Bills of Exchange Act (supra) as follows:

“Where a bill is dishonoured, the measure of damages, which shall be deemed to be liquidated damages, shall be as follows –

(a) The holder may recover from any party liable on the bill, and the drawer who has been compelled to pay the bill may recover from the acceptor, and an endorser who has been compelled to pay the bill, may recover from the acceptor or from the drawer, or from a prior endorser –

(i) The amount of the bill,

(ii) Interest thereon from the time of presentment for payment if the bill is payable on demand, and from the maturity of the bill in any other case,

(iii) The expenses of noting, or when protest is necessary, and the protest have been extended, the expenses of protest;

Commenting on the counterpart section 57(1) of the English Bills of Exchange Act 1882, the learned authors of Halsbury’s Laws of England (supra) state at page 222 paragraph 502 notes 2:

“Bills of Exchange Act 1882, s. 57 (1). It would appear from the language of this subsection that the damages it lists are exhaustive and, further, there is no case reported in which damages under another head have been awarded. In the case of Prehu v. Royal Bank of Liverpool (1870) LR 5 Exch 92 other expenses incurred by the holder were allowed but that was an action on the contract and not on the bill; Kelly CB (at 97) said “It has been pointed out that in an action on a bill of exchange by an indorsee against an acceptor, neither general nor special damage can be recovered, the right of the indorsee being limited to the amount of the bill and interest. But in the case before us the action is not brought on the bill but on a special contract, the incidents of which differ materially from those which belong to the contract constituted by becoming a party to a negotiable instrument and which are strictly limited by the law merchant”. Though that case was before the Bills of Exchange Act 1882, the reasons was adopted by Mattew J in Banque Populaire de Bienne v. Cave (1895) 1 Com Cas 67 at 69. And see Re English Bank of the River Plate, ex parte Bank of Brazil (1893) 2 Ch 438. Section 57 (1) and s 57 (2) of the Bills of Exchange Act 1882 are mutually exclusive 503, post) would appear to be no guide to damages which might be awarded under s. 57 2 (1)”. (My emphasis)

It would therefore appear certain that apart from liquidated damages under section 57 (a) of the Bills of Exchange Act (supra), other heads of claim sounding in special or unliquidated damages may be claimed by the customer of a bank for breach of contract arising from wrongful dishonor of a cheque by the bank. The respondent is, accordingly, entitled to unliquidated damages (whether pleaded or not) for the wrongful dishonor of its cheque occasioned by the negligence of the appellant bank see Allied Bank of Nigeria Ltd. v. Akubueze (1997) 6 NWLR (Pt. 506) 374 at 404-405.

It is for the above reasons and for the fuller reasons given in the judgment of my learned brother, Bage J.C.A., that I allow the appeal in part and abide by the consequential orders contained in the said judgment.

Appearances

A.A. SHABI (MISS)For Appellant

AND

O.A. ABIOSE For Respondent