BARRISTER OLALEKAN OYERINDE v. ACCESS BANK PLC
(2014)LCN/7275(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of June, 2014
CA/K/110/2012
RATIO
WHETHER THE COURT IS TO ASCRIBE PLAIN AND ORDINARY MEANING TO ANY CLEAR AND UNAMBIGUOUS PROVISION
It is indeed an elementary and fundamental principle of law that where the provisions of any law, Rules or statute are clear and unambiguous the only duty of the court in construing the provision is to ascribe to it, its plain and ordinary meaning and give effect to same. This golden rule of interpretation as engraved by a long chain of judicial decisions has become axiomatic and trite. See Elelu-Habeeb vs. Attorney-General Federation (2012) All FWLR (Pt. 629) 1011 at 1060 – 1061 Paras D – F, Attorney-General Bendel State vs. Attorney-General Federation (1981) 10 SC 1, Ishola Vs. Ajiboye (1974) 7 – 8 SCNJ 1 at 35, Balonwu vs. Gov. of Anambra State (2010) All FWLR (Pt 503) 1206 at 1240 Paras B – C. per INA AUDI WAMBAI, J.C.A.
WHETHER DENIAL OF THE RIGHT OF FINAL ADDRESS AMOUNTS TO MISCARRIAGE OF JUSTICE
It is needless to restate that parties to a proceedings have the right of final addresses before judgment in the matter is entered, which right is donated by Section 294(i) of the 1999 Constitution (as amended). The denial of such a right, where a miscarriage of justice is occasioned, renders the entire proceedings a nullity. See Alhaji Saka Ashiru v. Idris Ayoade (2006) 6 NWLR (Pt.976) 405. per AMINA AUDI WAMBAI, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
OLADOTUN A. ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
Between
BARRISTER OLALEKAN OYERINDE
(TRADING UNDER THE NAME AND STYLE OF C. J. GROCERY TRADING CO.) Appellant(s)
AND
ACCESS BANK PLC. Respondent(s)
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the decision of Kaduna State High Court delivered on the 10th February 2012 by Hon. Justice Isah Aliyu which dismissed the appellant’s claim.
The appellant as plaintiff before the lower court at paragraph 19 of his statement of claim, claimed against the defendant the following reliefs;
“(i) the sum of N10,000,000 (Ten Million Naira) as damages for wrongful dishonour of the plaintiffs cheque No. 265, or in the alternative the sum of N10,000,000 as damages for negligence in the wrongful dishonour of the plaintiff’s said cheque, and secondly,
(ii) interest at rate of 10% on judgment sum till same is fully liquidated.”
In its 37 paragraphed statement of defence filed on the 29th June, 2010, the defendant/respondent refuted the plaintiff/appellant’s claim. To answer to the new issues raised in the statement of defence, the appellant filed a reply to the Respondent’s statement of defence.
At the close of all pleadings and the pre-trial conference, the appellant as the sole witness for the plaintiff as PW1 testified before the court and tendered 8 exhibits. The defendant/respondent called no witness and rested its case on that of the plaintiff/appellant.
The gist of the appellant’s case at the lower court is that the appellant, a legal practitioner, who is also the proprietor of C.J. Grocery Trading Company based in Kaduna which distributes Manufactured Products to neighbouring states, serves as a key distributor to renowned Manufacturers like DANSA FOODS LTD. UNILEVER PLC among others. The plaintiff, C. J. Grocery Trading Company, operates a current account No. 025001000001994 which it opened with the defendant on 17th June, 2008 at the defendant’s branch at Ibrahim Taiwo Road, Sheikh Gumi Central Market, Kaduna, almost directly opposite the plaintiff’s main operational base.
On the 15/03/2010, the appellant acting in furtherance of a cheque number 265 dated 12/03/2010 in the sum of N2.7m issued to Dansa Foods Ltd, paid into his current account with the defendant the sum of N2,711,765.00 with the awareness that the credit balance in the account would be sufficient to service the said cheque issued to Dansa Foods Ltd dated 12/03/2010 when same would be presented for clearing on the 15/03/2010.
However, to his greatest surprise, despite the fact that his account with the defendant was credited with the said sum of N2,711,765.00 on the said 15/03/2010 and the account was sufficiently funded to service the cheque (No.265) issued to Dansa Foods Ltd, the defendant negligently acting in breach of contract, refused to clear the said cheque No.265 and returned same on 16/03/10 without value to the Dansa Foods Ltd’s bank (the Union Bank of Nigeria Plc) advising the beneficiary to re-present same on the 17/03/2010. This Respondent’s wilful advise to the beneficiary of cheque No.265 to “re-present” same on 17/03/2010 by which the Respondent dishonoured the cheque without ascertaining the status of the account, almost led the Regional Manager of Dansa Foods Ltd to threaten criminal action against the appellant for the dishonoured cheque.
The Respondent’s action according to the appellant amounts to breach of duty of care and skill owed the appellant by the Respondent.
At the conclusion of hearing, the learned trial Judge in his considered judgment, dismissed the appellant’s claims.
Aggrieved by the said dismissal of his case by the lower court, the appellant filed a notice of appeal on the 28/02/2012 containing 7 grounds of appeal.
At the hearing of the appeal, learned counsel for the appellant and for the Respondent, duly filed and exchanged their briefs of argument which they all adopted and relied upon.
The appellant’s brief of argument filed on 22/04/2013 as well as the reply to respondent’s brief of argument filed on 17/02/14 were settled by learned Nurudeen Asaju Esq, while the respondent’s brief of argument filed on 20/05/2013 was settled by learned A.D. Ahmed.
The learned appellant’s counsel distilled 3 issues for determination from the 7 grounds of appeal, thus:
“(1) Whether learned trial Judge was right to disregard appellant’s address of reply on points of law.
(2) Whether the trial court was right in its finding that the appellants cheque was not wrongfully dishonoured, and
(3) Whether the trial court was right in holding that appellant is not entitled to substantial damages.”
The learned counsel for the respondent formulated 4 issues for the determination of this appeal to wit;
“(1) whether the appellant is entitled to file a reply on point of law when the respondent did not all witness at the lower court.
(2) whether the appellant’s case at the lower court was adequately proven on the preponderance of evidence to earn him judgment by the lower court.
(3) whether Exhibits 1, 3, 4, 5 and 8 tendered by the appellant were wrongly admitted by the lower court.
(4) whether the appellant is competent to sue in his personal name without stating the name of the business name under which he trades as was registered by the Corporate Affairs Commission under Part B of the Companies and Allied Matters Act 1990.”
On the outset and before adopting the issues upon which this appeal will be determined, it is apt to straight away emphatically point out that issue No.4 distilled by the Respondent was not raised or canvassed at the lower court nor did the Respondent in his brief of argument proffer any argument in its support.
As can be gleaned from the record of the lower court, there is no where that the respondent canvassed this issue No.4. The said issue No.4 apparently only surfaced for the first time in the appellant’s brief. The position of the law on this state of affairs is very clear.
The law is settled that a party cannot without leave of the Appeal Court be allowed to raise and canvass any issue not raised and canvassed at the lower court. See Onehi Okoba vs. Mamodu Ajanya & Anor. (1998) 6 NWLR (Pt.554) 348, Opobiyi vs. Muniru NSCQR 178.
The said issue No.4 only deserves to be discountenanced and struck out, and same is accordingly discountenanced and struck out.
In the same vein, the respondents issue No.3 contends that exhibits 1, 3, 5 & 8 were wrongly admitted by the learned trial Judge same not having been pleaded, and the court is urged to expunge or discountenance the said exhibits. This issue, as rightly canvassed by the learned appellant’s counsel is raised by the learned respondent’s counsel in contravention of Order 9 Rule 7 of the Rules of this Court which provides;
“A respondent who desires to contend on the appeal that the decision of the court below should be affirmed on grounds, other than those relied upon by that court, must give notice to that effect specifying the grounds of that contention.”
The respondent’s counsel having not filed a respondent’s notice, cannot raise this issue in his brief of argument.
Accordingly respondent’s issue No. 3 is also struck out.
I therefore adopt the appellant’s issue No. 1 & 2 which encompass the respondent’s issues 1 & 2.
ISSUE NO.I
WHETHER LEARNED TRIAL JUDGE WAS RIGHT TO DISREGARD APPELLANT’S ADDRESS OR REPLY ON POINTS OF LAW.
On this issue, learned counsel for the appellant in both his brief of argument and his reply to respondent’s brief of argument submitted that by Order 31 Rules 8, 9, 10, & 11 of the Kaduna State High Court (Civil Procedure) Rules, 2007, particularly Rule 11, the appellant being the party beginning by virtue of the fact that the respondent did not call evidence, was entitled to reply on points of law to the respondent’s address. That there is nothing in Rules 8, 9 & 10 that deal with the right of Reply. That right, the learned appellant’s counsel posits, resides in Rule 11 which does not discriminate against any of the parties who files his written address first to reply on point of law only, That the appellant had the right to reply to the respondent’s final written address by virtue of Order 31 Rule 11 which right is a Constitutional right which he cannot be denied of. That the denial of the right by the lower trial court by his befuddled interpretation of the said clear provisions, has occasioned a miscarriage of justice in that he was denied the right to adequately respond to the issues enumerated in the respondent’s address. Reliance was placed on the case of Alhaji Saka Ashiru v. Idris Ayoade (2006) 6 NWLR (Pt 976) 405, 428 Para D.
It is the further submission of the learned appellant’s counsel that the said issue of the inapplicability of Order 31 Rule 11 to the appellant which was raised suo moto by the learned trial Judge without calling upon the parties to address it upon same, is a clear violation of the law and a breach of the appellant’s right to fair hearing. Counsel relied on Unokan Ent. Ltd vs. Omovwie (2005) 7 NWLR (Pt.907) 293 at 373 Paras B – C.
The court was urged to resolve this issue in favour of the appellant and to invoke the provisions of Section 6 of the Court of Appeal Act to consider the issues of law therein canvassed.
The submission of the learned counsel for the respondent on the other hand as captured in his brief of argument, is that the provisions of Order 31 Rules 8, 9, 10 & 11 are very clear and unambiguous and should be given their ordinary and plain meaning, to the effect that the said Rules intend to distinguish between situations where the defendant does not call evidence from where both parties call evidence with regards to the right of reply on point of law. While the situation envisaged by Order 31 Rules 9, 10 & 11 where the defendant calls evidence grants the right of reply on point of law to the defendant, the situation envisaged in Order 31 Rule 8 which is distinct and distinguishable, does not permit the plaintiff (now appellant) to file a reply on point of law. The case of ANPP v. Alh. Muhammad Goni and 4 Others (2012) 2 MJSC (Pt. 2) 1 at 33 – 35 was referred to.
On the submission by the learned appellant’s counsel that the learned trial Judge raised the issue suo moto without affording the parties opportunity to address on same, learned respondent’s counsel submitted that the learned trial Judge was only exercising his right to look into all relevant laws, Rules and statutes to the particular matter before arriving at its findings, which he did by relying on the said Rules of court in the discharge of his statutory duties as a Judge to appraise the case before him vis a vis the relevant laws and statute, which the learned respondent’s counsel submitted, does not amount to raising an issue suo moto.
On the learned appellant’s submission of the denial of fair hearing by the refusal of the learned trial Judge to consider the plaintiff/appellant’s reply on point of law, the learned respondent’s counsel submitted and urged the court to hold that the instant situation is distinct and distinguishable from that of denial of right of filing final address.
The resolution of this issue turns on the construction of the relevant Rules of court under consideration, Order 31 Rules 8, 9, 10 & 11 with respect to the right of a plaintiff who files his written address first before the defendant by virtue of the fact that the defendant does not call any witness or adduce any evidence throughout the trial.
It is therefore imperative that the 1st port of call shall be to the said provisions which, I shall, for ease of reference bring forth and recite.
Thus:-
“8. When the party beginning has concluded evidence, the Judge shall ask the other party if the party intends to call evidence. If the other party does not intend to call evidence the party beginning shall, within 21 days after close of evidence file a written address. Upon being served with the written address, the other party shall, within 21 days, file a written address in response to that of the party beginning.
9. Where the other party alls evidence, that party shall, within 21 days after the close of evidence file a written address.
10. Upon being served with the other party’s written address, the party beginning shall within 21 days file a written address.
11. The party who files the first address shall have a right of reply on points of law only. The reply shall be filed within 7 days after service of the other party’s address.”
Looking at the provisions of the Rules above reproduced, it is obvious that it does not require any erudition to grasp that the Rules apply to the Order of filing final written addresses in two situations as captured in Rule 8 and the 2nd situation captured in Rules 9 & 10.
By its wordings, Order 31 Rule 8 applies to a situation where the other party states at the close of the evidence of the party beginning, that he does not intend to call any evidence.
The party beginning, usually the plaintiff, (though not necessarily always so depending on the state of the pleadings), shall, within 21 days of the close of his evidence, file a written address. The other party, usually the defendant, who has not called any evidence shall then within 21 days upon being served with the written address of the party beginning (usually the plaintiff), file a written address in response to the plaintiff’s written address.
The second situation of the order of filing final addresses as provided in Rules 9 & 10, is where both parties, the plaintiff and the defendant call evidence.
Where both parties call evidence, the defendant shall file his written address before the plaintiff.
The bone of contention really is whether the right of reply provided in Rule 11 excludes the situation in Rule 8 where the defendant calls no evidence as held by the learned trial Judge at pages 158 & 159 of the record or includes both situations as canvassed by the learned appellant’s counsel.
At pages 158 & 159 of the record of proceedings while interpreting Order 31 Rules 8 & 11 the learned trial Judge had this to say:
“The reply address filed by the plaintiff has no place going by the provisions of our Civil Procedure Rules, 2007. This is because the defendant has not called evidence …(P.158).
…The plaintiff had no right to file a reply on pint of law as that is not contemplated by the provisions of our Rules in particular Order 31 Rule I thereof…”
Let me again even at the risk of repetition, call in aid the provisions of the said Order 31 Rules 8 and 11 of the Rules of the lower court to ascertain the correctness or otherwise of the construction ascribed to them by the lower court.
Rule 11 provides:
“The party who files the first address shall have a right of reply on points of law only…”
The phrase used in the Rule as referring to the person who has the right of reply on points of law is “the party who files the first address.”
The party who files the first address within the con of Rules 8 & 9 may be either the plaintiff as envisaged in Rule 8, or the defendant as envisaged in Rule 9.
As to whether Rule 11 applies to a situation in Rule 8 where the plaintiff files his address first by virtue of the fact that the defendant calls no evidence, both counsel have urged upon the court to give to the Rules their plain meaning. As a principle of law, I cannot agree more with both counsel and I shall do just that.
It is indeed an elementary and fundamental principle of law that where the provisions of any law, Rules or statute are clear and unambiguous the only duty of the court in construing the provision is to ascribe to it, its plain and ordinary meaning and give effect to same. This golden rule of interpretation as engraved by a long chain of judicial decisions has become axiomatic and trite. See Elelu-Habeeb vs. Attorney-General Federation (2012) All FWLR (Pt. 629) 1011 at 1060 – 1061 Paras D – F, Attorney-General Bendel State vs. Attorney-General Federation (1981) 10 SC 1, Ishola Vs. Ajiboye (1974) 7 – 8 SCNJ 1 at 35, Balonwu vs. Gov. of Anambra State (2010) All FWLR (Pt 503) 1206 at 1240 Paras B – C.
What then is the plain and ordinary meaning of the provisions under consideration?
The plain and ordinary meaning of the phrase;
“The party who files the first address.” In Rule 11
In my humble view the party who is the first to file his written address, whether he is the plaintiff as in Order 31 Rule 8 or he is the defendant as in Order 31 Rule 9. There is nothing in the said Rule that restricts its application to Rules 9 & 10 only and to the exclusion of Rule 8. Rules 8, 9, 10 & 11 are intended and must be read communally together without separating Rule 8 from Rule 11. There is nothing either in Rule 8 that legally suggests that it should not be read together with Rule 11, nor is there anything in Rule 11 that excludes its application to Rule 8.
It is therefore evident that the court can neither import into Rule 8 what it does not contain nor can it add to Rule 11 what it does not state. By the construction given to the said Rules of court by the lower court, the learned trial Judge has placed a concrete wall between Rule 8 and Rule 11 and also imported into Rule 11 what the drafters of the Rules have not added.
This is beyond the power of the learned trial Judge to do, for his duty was only to ascribe to the provisions their plain and ordinary meaning as provided. Had the drafters of the Rules intended to exclude the application of Rule 11 to Rule 8, they would have specifically so stated.
I must in the circumstance find favour with the appellant’s submission that the learned trial Judge was wrong to have interpreted the said provisions as depriving the appellant, as plaintiff, the right of filing a reply on point of law. Worst still, is the fact that the appellant was not given an opportunity to address the court on the issue which the Judge raised suo moto only in his judgment, the appellant (as plaintiff) having already filed the reply on points of law, which the learned trial Judge discountenanced.
It is needless to restate that parties to a proceedings have the right of final addresses before judgment in the matter is entered, which right is donated by Section 294(i) of the 1999 Constitution (as amended). The denial of such a right, where a miscarriage of justice is occasioned, renders the entire proceedings a nullity. See Alhaji Saka Ashiru v. Idris Ayoade (2006) 6 NWLR (Pt.976) 405.
In determining whether the refusal of the trial Judge to countenance the appellant’s reply on point of law occasioned a miscarriage of justice as to vitiate the entire proceedings of the lower court, recourse must be had to the issues raised therein and what impact they would have had on the findings made or arrived at by the court if same had been considered.
The said appellant’s reply before the lower court (as plaintiff therein) are at pages 128 – 133, wherein the appellant, (as plaintiff) itemised five issues raised by the defendant (respondent herein) in his address upon which this (appellant’s) reply on point of law was predicated. (See page 128 of the record).
The respondent’s issues which the appellant was replying to on point of law relate to:
Whether some documents or facts were pleaded by the plaintiff/appellant;
Whether plaintiff’s evidence on sufficiency of funds in the account on 15/3/10 was hearsay evidence;
Whether plaintiff could claim for post judgment interest rate;
Whether plaintiff needed to categorise damages and strictly prove same and,
Whether defendant/respondent’s counsel can supplant and/or challenge plaintiff’s uncontradicted evidence with his address.
I have gone through the said judgment and with respect to the issue of none pleading of some documents and facts, it is obvious that the admission of the said exhibits 5(a) – (c) by the court which exhibits it did not discountenance in its judgment means that even without the appellant’s reply, the court on its own disregarded the defendant/respondent’s submission and went ahead as being urged by the plaintiff/appellant in the discountenanced reply, to admit the documents as exhibits.
On the evidence of none sufficiency of funds in the account on 15/3/10 being based on hearsay evidence, the judgment shows that the learned trial Judge based its finding on exhibits 2 & 7, and did not throughout its judgment allude to the fact of the evidence being hearsay evidence.
As for the issue raised by defendant/respondent that the plaintiff/appellant did not categorise the damages claimed nor strictly proved same as well as that of the loss of N3.2M all of which are consequential to the plaintiff proving his case, since the court held that negligence was not proved by the plaintiff/appellant, the court did not go into those issues.
On whether the defendant/respondent’s counsel can, by his written address supplant or challenge the plaintiff’s uncontradicted evidence, the law is very clear that howsoever eloquent, brilliant and rich counsel’s address may be, it cannot replace, substitute or take the place of the required evidence.
As this issue forms part of the appellant ground 3 to be considered anon, this shall be considered in the 2nd issue for determination in this appeal.
I have, thus, so far dealt with almost all the itemised legal issues which the plaintiff/appellant’s said were raised by the defendant/respondent’s address which his reply on point of law addressed but was discountenanced.
In view of all these, although the appellant’s reply on point of law was discountenanced, it cannot be properly argued that the refusal of the trial court to look at or countenance the plaintiff/appellant’s reply on point of law in the circumstance occasioned a miscarriage of justice. The question as whether a miscarriage of justice has occasioned is a matter of facts to be proved in each case.
In the instant case though I hold that the appellant was entitled to have filed a reply on point of law being the party who filed his address first by virtue of Order 31 Rules 8 & 11 of the Rules of the lower court, I also hold that the learned trial Judge’s interpretation of the said Rules of court depriving or denying a plaintiff who first filed his written address (where defendant calls no evidence) of the right to reply on point of law is erroneous. However, having found that such a denial in the circumstance did not occasion a miscarriage of justice, same does not vitiate the proceedings before the lower court.
ISSUE 2
WHETHER THE TRIAL COURT WAS RIGHT IN ITS FINDING THAT THE APPELLANT’S CHEQUE WAS NOT WRONGFULLY DISHONOURED.
This issue is distilled from ground 2 of the appellant’s grounds of appeal.
The appellant’s main complaint under this issue is against the finding of the lower court at pages 165 – 166 of the record to wit:
“It is my finding that by exhibits 2 and 7 the deposit was made after the cheque was presented for payment (clearance) at a time when the funds in the plaintiff account were not sufficient to settle exhibit 4…..
At the time the cheque was presented there was no sufficient money in the account a decision was taken by the defendant to dishonour the cheque for that reason…. (page 166).
…In that case the defendant was not obliged to pay or honour exhibit 4. There was therefore nothing wrong with the defendant action in rejecting to honour exhibit 4 at the time it was presented for payment (clearance)… (page 165 11th paragraph).”
In his ground 2, the particulars of the complaint were itemised as (a) to (q). It is essentially upon these particulars of complaint that the learned appellant’s copious submission on this issue oscillates.
The appellant’s contention is that he had the sum of N57,852,67 in his current account with the defendant. On the 12/3/10 he issued cheque No. 265 (exhibit 4) in the sum of N2,711,765 to his business partner, Dansa Foods Ltd in anticipation that he would sufficiently fund the account by the 15/3/10 when exhibit 4 would be presented for clearance which would be within the 3 days of its issue, that is, from 12/3/10 to 15/3/10.
The appellant on 15/3/10 made a deposit of the sum of N2,711,765.00 vide a bank teller, exhibit I, into his account so as to accommodate cheque No. 265 (Exhibit 4) which would be presented for clearing/payment on the same 15/3/10.
The learned appellant’s counsel submitted that on the said 15/3/10 the respondent received the said sum of N2,711,765.00 he deposited, which sum the respondent utilized on the same 15/3/2010 in debiting the appellant for payment or clearing exhibit 4, thereby, leaving the appellant’s account bereft of any balance except for the sum of N57,851,67 which was his opening credit balance for that day.
Learned appellant counsel pointed out that the respondent who had up to the end of the working day of 15/3/10 after receiving exhibit 4 from the Union Bank to determine whether to clear or return the cheque, chose to return exhibit 4 unpaid with the mark “re-present on 17/3/10” after being seized of the appellant’s sufficient funds and exhausting same for clearing/paying exhibit on the 15/3/10. Instead, the respondent credited appellant back with the sum on the 16/3/10 after it had returned exhibit 4 unpaid and uncleared, the custody of which it kept until 16/3/10.
Learned appellant’s counsel maintains that the appellant’s account was sufficiently funded to accommodate exhibit 4 on the 15/3/10 when exhibit 4 was presented to the defendant for payment or clearing as the respondent had the whole working day of 15/3/10 to pay/clear exhibit 4 to the 16/3/10 when it was returned uncleared there being a distinction between cash counter cheque and a cheque for clearing, the distinction which the learned trial Judge failed to make thereby erroneously holding that the appellant had no sufficient funds in the hands of the respondent to settle the cheque (exhibit 4) when it was presented to it.
Unlike the cash counter cheque whose relevant time of determining the sufficiency of the drawer’s account is the time of the presentation of the cheque, learned appellant’s counsel argued that the relevant time of determining whether the account is sufficiently funded is the whole clearing period of 3 days prescribed by the Central Bank of Nigeria for clearing local cheques.
Thus, appellant’s counsel maintains that not only did he pay sufficient funds to the respondent on the date of presentation, but the respondent also debited him in the sum and failed to give value to exhibit 4 inspite of having the next clearing day, 16/3/10 to finalise on same.
That respondent who did not deny that the appellant paid in the said sum of N2,711,765.00 on 15/3/10 but only contended by his statement of defence that the said money was received at 14.37pm while the cheque 265 (exhibit 4) was presented for clearance at 11.22am that appellant’s account at the time of presentation of exhibit 4 was not adequately funded, abandoned his case and admitted the appellant’s case by not adducing any evidence in support of his pleadings (statement of defence).
Still on this issue, learned appellant’s counsel submitted that the failure of the respondent to give value to and clear exhibit 4 on 15/3/10 amounts to negligence, a breach of the contractual duty on the part of the respondent, who by virtue of the banker customer relationship is the agent of and debtor to the appellant and therefore duty bound to obey the appellant’s instructions with regards to cheques drawn on his account which, was sufficiently funded.
The respondent, the appellant submitted, has a duty of reasonable care and skill and not the appellant, as the lower court erroneously held to ensure that it checked the status of the appellant’s account before returning exhibit 4 unpaid, and inscribing on same that same be “re-presented on 17/3/10” without any instruction to that effect from the appellant. Learned counsel relied on the cases of:
(i) STB Ltd v. Anumnu (2008) 14 NWLR (Pt 1906) 125 at 151 paras B – D, as applied in
(ii) Balogun vs. NBN (1978) 3 SC 155.
(iii) Access Bank PLC v. M.F.F.C.S (2005) 3 NWLR (Pt 913) 460.
On the evaluation of evidence before the lower court, while learned appellant’s counsel concedes that it is the exclusive preserve of the trial court, he submitted that the lower court did not properly evaluate exhibits 1, 2, 3 & 4 (see paragraph 4:42 – 4:54 of appellant’s brief of argument).
It is appellant’s (further) submission that the learned trial court misdirected himself by failing to find that the relevant time the appellant’s account was required to be funded for a crossed cheque and clearing cheque received from another bank is the whole working day of presentation. That issues having been joined on this fact by the state of pleadings, the burden was shifted to the respondent by Section 157 Evidence Act, and that he failed to discharge that burden by failing to call evidence to prove the specific averred timings of the receipt of exhibits 1 & 4 (appellant’s deposit of N2,711,675 and cheque 265 for N2,711,675.00 respectively), thus, the appellant’s counsel argued that the finding by the learned trial Judge that the appellant had no sufficient funds at the time of the presentation of the cheque, the judge having failed to see the distinction between the times that the transaction might have taken place on 15/3/10, is without evidential support.
That the learned trial Judge was in error when he failed to act on the unchallenged evidence by the appellant that the respondent had sufficient time which was the whole working day of 15/3/10 to clear exhibit 4 and was also in error to have disregarded the appellant’s statement of account (exhibit 2 & 7) which show that the respondent had debited appellant for exhibit 4 on 15/3/10, but rather acted on the respondent’s unproven averment in the statement of claim that it received exhibit 4 before exhibit I was paid on 15/3/10.
The appellant’s unchallenged evidence at the lower court which was not incredible, appellant’s counsel contends, was entitled to be accepted and acted upon.
That the learned trial Judge descended to the arena by filling in the gaps in the respondent’s case thereby occasioning a miscarriage of justice when its speculated without any evidence on the exhibits 2 &. 7 which it relied upon regarding the timing of the receipt or recording of the two exhibits to hold that the appellant had no sufficient funds as at time that exhibit 4 was presented. That without any evidence or being solicited, the trial Judge held that “the bank (respondent) had no duty to keep checking the account throughout to see whether funds have been deposited. Banks have so many customers and so many accounts.”
That the learned trial Judge made up the respondent’s case, when inspite of exhibits 2 & 7 showing that the appellant’s account was debited for clearing of exhibit 4 on 15/3/10, the learned trial Judge held that, the fact that the amount on exhibit 4 was reflected in the statement of account as debit does not mean that the account was debited as the cheque entry would have to be reflected.
Learned appellant’s counsel urged upon the court to resolve this issue in the appellant’s favour as the respondent did not dispute the appellant’s case that it (the respondent) had exhibit 4 with it for enough time to pay same in fulfilling its duty of care owed the appellant, there being no policy, rule, regulation or law which forbade appellant from insisting on the respondent clearing exhibit 4 on the same day it was presented.
In response to the learned appellant’s submission on this issue, the learned respondent’s counsel in his brief of argument, submitted that this issue bothers on whether the appellant proved his case on the preponderance of evidence before the lower court to warrant his expectation of judgment in his favour.
That the appellant’s claim before the lower court centres on allegation of negligence against the respondent on the basis of the respondent’s failure/refusal to honour his cheque, No. 265 (exhibit 4).
While conceding that a banker customer relationship exists between the appellant and the respondent to ensure that cheques drawn by the appellant are favourably considered and accordingly paid once the appellant’s account is well funded to the tune of the cheque, learned respondent’s counsel submitted that the respondent can only be said to have breached that duty of care if it failed to honour the appellant’s cheques when the appellant’s account was sufficiently funded. Such was not the case in this appeal as the appellant’s account was not sufficiently funded as at the date and time exhibit 4 was presented for payment/clearance.
That the plaintiff having testified that cheque No. 265 (exhibit 4) was paid into Union Bank Account of Dansa Foods Ltd on 12/3/10 when he had only N57,851.00 in his account and having also testified in cross-examination that he did not know when Dansa Foods Ltd presented exhibit 4 to Union Bank and that the deposit (in exhibit I) was not made personally by him, neither did he know whether the money deposited has to be counted before he would be credited with the money in his account (page 139 of the record) all these go to support and vindicate the judgment of the lower court at page 162 that the appellant did not discharge to the satisfaction of the court the onus on him to prove that he deposited the cash in exhibit I and same was credited to his account before exhibit 4 was presented for clearing.
Learned respondent’s counsel submitted that the appellant did not adduce credible evidence before the lower court, having admitted in cross-examination that he did not know the time exhibit 4 was presented for payment and not being the person who paid exhibit I, he would not have known when exhibit I was deposited, making the appellant’s case weak. That the appellant did not prove before the lower court that his account was funded to accommodate exhibit 4, thus the learned trial Judge’s finding that the relevant time to determine whether the account was adequately funded or not was the time of its presentation is right. That the trial Judge was also right to have held that the marking on the cheque for “re-presentation” if there was no sufficient funds in the account as the bank was not expected to keep looking at the account throughout the day, is also proper, First Bank v. Partnership Investment Ltd (2004) 2 MJSC 101, at 127 was referred to.
On the submission that the learned trial Judge did not properly evaluate the evidence before it, learned respondents counsel submitted that the trial Judge properly weighed and evaluated same having been fairly placed on the imaginary judicial scale. Standard Bank Ltd v. Barrister Ezenwa Anumnu (supra) was referred to at page 159.
The appellant’s grievances in the main are:
“(1) That the learned trial Judge failed to see the distinction between a cash counter cheque and a clearing cheque (exhibit 4) with respect to determining the relevant time for the sufficiency of the account upon which the cheque is drawn.
(2) That the learned trial Judge did not properly evaluate exhibits 1, 2 & 7 upon which it based its decision.
(3) That the trial Judge failed to act on the unchallenged or uncontrovertd credible evidence adduced by the appellant but rather relied on the unproven pleadings of the respondent which he abandoned while the Judge also descended into the arena to fill in the gaps.
(4) That the learned trial Judge was wrong to have dismissed his claims to which he was entitled.”
Those stated complaints against the decision of the lower court as they relate to challenging the proper evaluation of the evidence amounts to complaining against what the trial court ought to have but refused to do or doing what he ought to do but doing so improperly with regard to the evidence before the court.
As it is the law, the primary function of evaluating and ascribing probative value to evidence is that of the trial court which heard, saw and observed the demeanour of the witnesses. The trial court having these advantages, is eminently placed in the best position of evaluating and ascribing the proper value to the evidence adduced before it and making findings thereon. Generally, therefore, it is not the business of an Appeal Court to interfere with the performance of this function by the trial court except where it is shown that the trial court did not do so in accordance with the well laid down principles of law or did not use its advantage of seeing and observing the witnesses. See Iriri v. Erhurhobora (1991) 2 NWLR (Pt 173) 252,
The Appeal Court is usually not in a hurry to perturb or disturb the findings of facts made by the trial court except where such findings are unsound or are perverse.
Where however, the judgment of the lower court was reached either upon erroneous inference drawn from finding of facts or that its application of the law to properly found facts is perverse or erroneous, the Appeal Court has the duty to intervene to correct the injustice so caused. See First African Trust Bank Ltd v. Partnership Invest Co. Ltd (2003) 18 NWLR (Pt 851) 35 or (2003) 12 SC (Pt.1) 90.
To ascertain whether the trial Judge did not properly evaluate the evidence before him and that the findings arrived at by him are unsound, this court has the duty to peruse not only the judgment of the lower court, but also the available evidence before him upon which the findings were made.
I find it easy to embark on this duty by first identifying the facts or evidence which are common ground either at pleadings or by admitted or proved evidence and upon which there was no contention, this is to narrow down the issues in contention which desires my consideration:
“(1) That the appellant on the 12th March, 2010 (issued cheque No.265 (exhibit 4) in the sum of N2,711,675.00 to his business partner, Dansa Foods Ltd, to be drawn on his account with the defendant/respondent on 15th March, 2010.
(2) That on the 12/3/10 when the said cheque was issued by the appellant to Dansa Foods Ltd, the appellant had only the sum of N57,851 in his account with the defendant/respondent.
(3) That the sum of N2,711,765 was deposited into the appellant’s account with the respondent on the 15/3/10.
(4) That cheque No. 265 (exhibit 4) issued by the appellant to Dansa Foods Ltd was presented by the latter’s bank, the Union Bank of Nigeria Plc to the respondent for payment/clearance on 15/3/10 and same was not paid.”
The issue in contention which the appellant’s counsel complains is that the trial Judge did not properly evaluate and to which the Judge is said to have arrived at/erroneous findings include those already highlighted in this judgment as the main grievances of the appellant. These are;
“(1) The erroneous findings as to the time exhibit I was paid on 15/3/2010 into the appellants’ account with the respondent
(2) whether the appellant’s account was debited on the same 15/3/10 and the purpose of debiting the account of the respondent having refused/failed to honour exhibit 4.
(3) The relevant time to determine whether the appellant’s account was sufficiently funded to clear/pay exhibit 4.
(4) Whether the findings arrived at by the trial Judge on the purported evaluation of exhibits 2 & 7 is proper.
(5) Whether the trial Judge relied on unproven statement of defence at the expense of the appellant’s credible and uncontroverted evidence and also descended into the arena to arrive at its finding that the appellant did not prove his case thereby dismissing the appellant’s case.”
The learned respondent’s counsel forcefully argued in his brief of argument and rightly too, that the burden of prove was placed on the plaintiff/appellant to prove his case at the lower court. That submission of the respondent’s counsel is but a re-statement of the law in this country and I dare say, in almost all countries of the world operating the adversary system of adjudication.
The 1st & the 3rd complaints above highlighted shall be considered together, that is, as to the time exhibit I was paid on 15/3/10 into the appellant’s accounts with the respondent and the relevant time to determine whether the appellant’s account was sufficiently funded to clear/pay exhibit 4. The appellant’s case at pleadings (paragraph 8 of the statement of claim and paragraph I of the reply to the statement of defence) is that he paid the said sum of N2,711,765.00 vide exhibit I through one Nurudeen, his staff at about 9.00am on the 15/3/10. The defendant/respondent at paragraphs 2, 10, 12 & 14 pleaded that the plaintiff/appellant paid in the money at the hour of 14:17:05 on the 15th March, 2010 when exhibit 4 had been presented from clearing house, the Central Bank of Nigeria (CBN) at 11:22am of the same date at a time when the appellant’s account was funded with only N57,851.6.
The appellant in his earlier deposition on oath which he adopted as his evidence, at paragraphs 8 and 15(i) (ii), maintained that he paid the money into the account but the defendant failed to note and post the deposit thereby believing that the account was not funded on 15/3/2010, that even when the deposit of N2,711,675.00 was posted on 15/3/10 as revealed in the statement of account, defendant failed to give value to the cheque-holding onto same for the whole of that working day.
The bank statement of account, exhibits 2 & 7 were tendered. The deposit slip is exhibit I. In the answers to the interrogatories conducted by the appellant which was filed as supplementary record of proceedings, the respondent in answer to the question as to whether the defendant/respondent time stamps tellers of cash deposits and in particular exhibit I, the respondent’s answer is that exhibit I was time stamped.
I have thoroughly and painstakingly closely perused exhibit I to see the time same was cleared by respondent as having been time stamped for the receipt of the deposit. No such time can be seen on the endorsed stamp on exhibit I.
At paragraphs 2(c) (d) & (e) of the appellant’s reply to the statement of defence, the appellant pleaded the fact that respondent was obligated by the Central Bank of Nigeria mandatory 3 days clearing period, to clear exhibit 4 any time it was presented on the 15th March or even on the 16th March, 2010 and that the confirmation period of exhibit 4 did not start and end at 11.22am on 15/3/10 when defendant/respondent alleged it came in contact with exhibit 4.
In his evidence in cross-examination the appellant said, inter alia at pages 141-142 of the record:
“… I do not know as a fact when the money on exhibit I was posted into the account but I do know as a fact that it was paid in the morning.
(Underlining mine, for emphasis)
“… The 12th March was a Friday, the immediate working day was 15th March, 2010. It is the rule of Central Bank of Nigeria that every cheque takes 3 working days to clear. Between 12th & 15th there were only 2 working days.
…Three working days from 12th of March from perspective of Dansa food will be 12th, 15th & 16th March…”
(Underlining for emphasis only).
The above is the evidence of the appellant before the lower court in addition to the documentary evidence in exhibits 2 & 7 (the appellant’s statement of account).
By the evidence of the appellant exhibit I was paid into his account in the morning although the respondent contends that evidence amounts to hearsay evidence having not personally paid the money, there is no doubt that exhibits 2 & 7 show that the money was paid into the account on the 15/3/10, which fact is also admitted by the respondent’s statement of defence.
Further, the evidence of the appellant in cross-examination on the mandatory clearing days of such a cheque like exhibit 4, supports the appellant’s contention that the respondent had up to the 16th March 2010 or at least the end of 15/3/10 to clear/pay exhibit 4.
It is very significant that there was no rebuttal evidence throughout the trial at the lower court to dislodge the appellant’s case. The defendant though filed a statement of defence and a written statement on oath of one witness, no witness was called to controvert the appellant’s evidence.
Thus the appellant’s evidence that the deposit on exhibit I was made in the morning of 15/3/10 stands unchallenged, as the respondent did not adduce evidence to support its pleadings that deposit was made at 14.37hrs.
Furthermore, the appellant vehemently posits which is supported by exhibits 2 &7 that when exhibit I was paid into his account (exhibits 2 & 7) on the 15h March, 2010 as an inward cheque, his account was debited with the said amount but cheque No. 265 (exhibit 4) was not honoured (paid) by the respondent.
When also on the same date the deposit in exhibit I was reflected in the statement of account, same was utilized leaving only his opening balance of N57,851.6, yet exhibit 4 was not paid. When on the 16th March, 2010 exhibit 4 was returned unpaid with the inscription: “re-present on 17/3/10”, the said amount deposited for exhibit I was still standing in his credit but respondent chose to return exhibit 4 rather than clear same.
By the interrogatories, exhibit 4 was returned on the 16th, while by the 15th at whatever time, the respondent had reflected on exhibits (2 & 7) the receipt of the deposit for exhibit I.
The respondent did not call any evidence to deny the appellant’s evidence and most importantly to explain the entries in exhibits 2 & 7, especially to explain why the appellant’s account was debited on 15/3/10 with the same amount on exhibit 4 but respondent refused to give value to the said cheque and clear it.
Respondent also did not testify to offer the needed explanation as to whether the said sum was utilized by it yet refused to pay same to its presenter. The appellant’s evidence which interestingly was elicited in cross-examination as to the relevant time for determining the sufficiency of funds in the account was 3 days extending to the 16th March, 2010 was not countered by evidence.
There was no legal way the learned trial Judge would have properly found the answers to all these important questions. Exhibits 2 & 7 which the learned trial Judge relied upon to find that the appellant did not have sufficient funds at the time of presentation of exhibit 4, neither have any endorsement or explanation as to the chronological order of the entries therein nor do they deny the appellants uncontroverted evidence that the relevant time to determine whether the appellant had sufficient funds in the account was the whole of the working day of 15th March, 2010 and extends up to the 16th March, 2010 by which day the respondent could either pay/clear the cheque or return same unpaid.
I find myself irresistibly agreeing with the appellant that the learned trial Judge’s findings placed on exhibits 2 and 7 is erroneous and perverse.
It also follows logically that the finding by the trial judge that the relevant time to determine whether the appellant’s account was sufficiently funded to accommodate exhibit 4 was the time exhibit 4 was presented, cannot in view of the uncontroverted evidence of the appellant, be supported.
Learned trial judge’s finding also at page 166 that the Bank was not under any duty to keep looking at the account throughout the day when the cheque was presented to see whether funds have been deposited in the account with a view to changing their decision, is not supported by any evidence to that effect.
Apart from the unchallenged evidence of the appellant before the court, there is no other evidence on the other side, that is the Respondent’s side, apart from what was elicited in cross examination and exhibits 2 and 7 already dealt with, which neither discredited the appellants case nor provided the needed rebuttal evidence by the Respondent.
The law is settled that counsel’s submission howsoever brilliant, or eloquent cannot substitute, replace, supplant or take the place of any required evidence.
It is also the law that the pleadings of a party which are mere statement of facts intended to be relied upon to prove or disprove a fact cannot constitute evidence.
For any pleadings to be upgraded and be entitled to be removed from the realm of mere statement of facts to be elevated to the realm of legally acceptable evidence, same must pass through the process of becoming evidence before it can be clothed or endowed with the status of acceptable evidence. Thus, howsoever eloquently and brilliantly pleadings are drafted, they cannot be placed on the same pedestal with properly admitted evidence. See also the case of Nika Fishing Co. Ltd. v. Lavina Corporation (2008) 16 NWLR (Pt.1114) 509.
It is therefore trite that pleadings alone do not and cannot constitute any evidence before the court. As regards the place of address of counsel, the law is that arguments of counsel in an address is designed only to assist the court in arriving at a just decision in the case but are not substitute for cogent credible evidence proffered on the issues at trial that call for determination. See Niger Construction Ltd. v. Okugbemi (1987) 4 NWLR (Pt.67) 787, Daramola v. A.G. Ondo State (2000) 7 NWLR (Pt.665) 440.
In the instant appeal apart from the pleadings of the defendant which by the operation of law is deemed abandoned having not been supported by evidence, and the learned Respondents address whose eloquence cannot afford same the status of being substituted for the absent evidence, there is no contrary admissible evidence to the evidence of the appellant adduced before the trial court.
Contrary to the unsupported view held by the learned trial judge, the relationship of the appellant and the Respondent being that of Principal and agent, the agent taking instructions from his principal, the Respondent as the agent was bound to exercise duty of care and skill to his principal to pay out the principal’s money in his hands as stated in the endorsed order (cheque) when the appellant’s account was sufficiently funded within the relevant period of its clearing/payment on the 15th and 16th of March, 2010.
This is because as shown in exhibits 7 and 2 the appellants account was sufficiently funded, exhibit 1 having been reflected in the statement of account to have been paid in on 15/3/2010 while exhibit 4 was returned unpaid on the 16th March with the mark “represent”. Due diligence on the part of Respondent would have shown that as at the 16/3/10 when the cheque No. 265 (exhibit 4) left the custody of the Respondent the appellants account was funded to accommodate the amount in the exhibit 4 and the Respondent ought not to have returned same unpaid and with the mark.
Thus, to refer a cheque back to its drawer when the customer has money in his account constitutes negligence and is wrongful. STB Ltd. v. Anumnu (2008) 14 NWLR (Pt.1106) 125 at 151 (ratio 5)
“A banker is under a duty to honour cheques drawn on it by a customer who has sufficient funds with the bank to cover the amount endorsed on the cheque. Therefore where a banker refuses to pay a customer’s cheque and the customer has sufficient funds, such a refusal, failure or neglect by the banker to honour cheques in such circumstances constitutes breach of duty for which the bank will be liable in damages, and the extent or nature of damages is that actually resulting from the breach of contract.”
I therefore find that the appellant’s uncontroverted evidence as presented at the lower court when placed against the unproven Respondents side, preponderates over the respondent’s case. There was sufficient evidence to have found for the appellant. In the circumstance, I find that the findings and the decision of the lower court are not supported by the available evidence before it, nor do the findings flow from admitted evidence. I must therefore declare same perverse.
This is a situation where this court must interfere and step in to temper with the said findings of the lower court and set aside the erroneous decision. See Olaniyan & Ors. v. Fatoki (2013) LPELR – 200936.
The result is that this issue is resolved in favour of the appellants and against the Respondent.
Flowing from this, is a consideration of whether the appellant is entitled to substantial damages.
It is submitted for the appellant relying on the case of S.T.B. Ltd. v. Anumnu (supra) at P.154 para B-C and Access Bank Plc v. M.F.C.C. (2005) 3 NWLR (Pt.913) 460 at 476 Para C-D that a customer’s cheque wrongfully returned is entitled to damages arising from breach of contract and general damages for libel as the words “drawers attention required” endorsed on such a cheque is libellous.
That libel is actionable perse without proof of damages, or even pleading any actual damage as the law presumes injury to him for which the courts now award substantial damages commensurate to the persons status or standing in life.
It is further submitted for the appellant that exhibit 4 during the aborted clearing process went through the hands of Dansa Food, the officials of Central Bank and Respondent’s staff which constitute the publication in defamation. Learned counsel submitted that the defendant having not called evidence is deemed to have admitted the appellant’s evidence. This fact of the aborted clearing passing through the hands of Dansa Foods and officials of respondent’s was deposed to by the appellant’s without any rebuttal evidence by the respondent.
It is submitted for the respondent that the appellant did not adduce evidence to evince the quantum of damages suffered and having answered in cross-examination that there was no document before the court to show that his relationship with Dansa Foods has ceased, his testimony in chief that his estimation in the eyes of Dansa Foods Plc has been negatively affected by the dishonour of the cheque, is an admission under Section 75 which makes his claim of loss of N3,200,000 (three million two hundred thousand Naira only) as a trade commission a mirage.
That the failure of appellant to lead evidence on how he arrived at the claim of N10m is fatal to his case and must be held against him.
Learned Respondent’s counsel relied on Felix Nwoye v. Nig. Bottling Co. Ltd. (2010) 4 (Pt.11) MJSC 130 at 142.
I have gone through the case of Access Bank Plc v. M.F.C.C. (supra) a decision of this court per Aderemi JCA (as he then was), to which my attention has been drawn. In that case, this Court held the position that libel is actionable per se and proof of damages is unnecessary, and that once libel is proved, there is a presumption of damages.
It also held that an endorsement on a cheque issued to a 3rd party as “D.A.R. (Drawers Attention Required)” will be libellous if the dishonour is wrongful.
On whether endorsement “Drawer’s Attention Required” on a cheque is defamatory, the court held further;
“If the dishonour of a cheque on the face of the material placed before the court, is found to be wrongful, the words, “drawer’s attention required” or “refer to drawer” endorsed on such a cheque will be libellous. If however, the dishonour, based on the materials before the court is not found to be wrongful, those words cannot be adjudged to be libellous. In the instant case, from the available evidence given by both sides, there were funds in the account of the respondent at the time the cheque was presented. The endorsement was therefore defamatory and its imputation was one to the respondent’s discredit. P.474, paras, B-C; 475 para D).”
In the instant case the words used are “re-present” on 17/3/10. This in my view has the same effect as D.A.R. as the beneficiary was prevented from drawing on the appellant’s account on that 15/3/10 or even on 16/310 returning the cheque for representation on 17/3/10 when the appellant’s account was adequately funded.
I have no reason to depart from the decision of this court expressed in the said case. I too, hold the view that the dishonouring of cheque No. 265 (exhibit 4) by the respondent when the appellant had sufficient funds in the account is actionable and the appellant is entitled to damages. A customer whose cheque is wrongfully returned when the bank holds in its hands the customer’s money of a sum equivalent to that endorsed on the cheque is entitled to damages for breach of contract. The appellant is surely entitled together.
On the whole, I find merit in this appeal and same is hereby allowed.
The decision of the lower court is set aside.
By the appellant’s high status in life the appellant being a senior lawyer and a trader, he is entitled to substantial damages. The sum of Three Million Naira (N3M) is hereby awarded as damages for breach of contract and libel.
I also award the sum of N20,000.00 cost against the respondent in favour of the appellant.
ABDU ABOKI, J.C.A.: I agree with the reasoning and conclusions of my learned brother AMINA AUDI WAMBAI JCA, that this appeal should be allowed. Same is allowed by me. I abide by the consequential order as to costs.
O. A. ADEFOPE-OKOJIE, J.C.A.: I have had the privilege of reading in advance the judgment just delivered by my learned brother Hon. Justice Amina Audi Wambai, JCA. I am in total agreement with the reasoning and conclusion of her Lordship.
The appeal succeeds and is allowed by me. The judgment of the lower Court is hereby set aside.
Appearances
ROTIMI OGUNESO, SAN WITH NURUDEEN ASAJUFor Appellant
AND
A.D. AHMED, WITH J.B. HAFSAT AND IDOTA ISAACFor Respondent
