ECOBANK PLC v. ALHAJI RABIU MOHAMMED (2014)

ECOBANK PLC v. ALHAJI RABIU MOHAMMED

(2014)LCN/7424(CA)

In The Court of Appeal of Nigeria

On Friday, the 18th day of July, 2014

CA/K/111/2007

RATIO

EVIDENCE: STANDARD OF PROOF; STANDARD OF PROOF REQUIRED TO PROVE A CLAIM FOR SPECIAL DAMAGES

On the standard of proof required to prove a claim for special damages, it was held in the case of Shell petroleum Development Company of Nigeria Limited v. Chief G.B.A. Tiebo & Ors (2005) 9 NWLR (pt.931) 439 at 461 – 462 Para B – B per Oguntade JSC reading the lead Judgment as follows:

It is now well established that special damages claimed by a plaintiff must be strictly proved see Dumez v. Ogboh (1972) 3 SC 196 and Agunwa v. Onukwe (1962) 1 All NLR 537. In Oshinjinrin v. Elias (1970) 1 All NLR 153 at 156, this Court per Coker, JSC discussed the nature of proof required in cases where special damages is claimed thus:

“Undoubtedly, the rule that special damages must be strictly proved applies to cases of tort. In effect the rule requires anyone asking for special damages to prove strictly that he did suffer such special damages as he claimed. This however does not mean that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish entitlement to special damages. What is required is that the person claiming should establish his entitlement to that type of damages by credible evidence of such character as would suggest that he indeed is entitled to an award under that head, otherwise the general law of evidence as to proof by preponderance or weight usual in civil cases operates.”

In E.K. Odulaja v. Haddad (1973) 1 All NLR 191 at 196 similar views as in Oshinjinrin v. Elias (supra) were expressed by this court. It would appear, however, that these views have been relied upon in this case by the trial court as a justification to award general damages in lieu of special damages which the court held were not strictly proved. I think that the trial Judge misunderstood the import of the guidance given in the two cases.

It must be stated that the statement of the law in Oshinjinrin v. Elias (supra) and other cases where similar views were expressed was not meant to lower the standard of proof required to establish a claim for special damages. What the statement connotes is that what is required is qualitative and credible evidence in order to establish entitlement to qualitative special damages. In other words it is a general guide and arises from the fact that it is impossible to prescribe the quantity and nature of evidence required in a given case to justify entitlement to special damages. In some cases, it may be necessary to show documentary proof of loss sustained while in others it may be unnecessary. The important thing is that the evidence proffered must be qualitative and credible and such as lends itself to quantification. Each case depends on its own facts and circumstance. There are cases where it will be impossible to pass the test required unless documentary proof is produced to show the loss sustained. In others, oral evidence which is credible may be sufficient. The character of the evidence called must measure up to the circumstance of the occasion or the expectation of a reasonable man.”

In consequence, from the foregoing authority and other authorities on the issue of proof of special damages, there is no special category of evidence required to prove special damages. What is required is qualitative and credible evidence as will satisfy the Court of entitlement to the award. Documentary evidence may or may not be produced, depending on the manner of case, so long as it lends itself to quantification. Each case depends on its own facts and circumstances.
Strict proof does not mean unusual proof, extraordinary proof beyond reasonable doubt. The character of the evidence must measure up to the expectation of a reason man. See also NICON Hotels Ltd v. NDC Ltd (2007) 13 NWLR Part 1051 p. 269 para E – F, Gonzee (Nig) Ltd v. NERDC (2005) 13 NWLR Part 2005 p. 634 at 650 para A – B, Adecentro (Nig) Ltd v. Council of Obafemi Awolowo University (2005) 15 NWLR Part 948 P. 290 at 316 Para F – H per Acholonu, JSC per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

COURT: DUTY OF COURTS; THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE TO SUCH EVIDENCE AND THE DUTY OF THE APPELLATE COURT TO AFFIRM SUCH DECISION WHEN IT IS NOT PERVERSE

In regard to the question, whether the lower Court erred in this evaluation of the evidence, it was held in the case of Guardian Newspapers Ltd & Anor v. Rev. pastor C.I. Ajeh (2005) 12 NWLR part 938 Page 205 at 228 Para C – E per Adekeye, JCA (as he then was) as follows: “… that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the court of trial which had the opportunity of seeing, hearing and assessing the witnesses. Where a trial Court unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of an appellate court to substitute its own view for those of the trial Court. What an appellate court is required to do is simply to find out from the record whether there is evidence on which the trial Court could have acted or on which its findings are based, once this is achieved, the appellate court cannot interfere with the decision of the trial Court.”

In the case of Sule Anyegwu & Anor v. Aidoko Onuche (2009) 3 NWLR (Pt. 1129) 659 the Supreme Court, per Muhammad, JSC at page 674 Para I – G held that: “It is a settled principle of law that where a trial court has carried its assignment satisfactorily, an appeal court shall be left with no option but to affirm such a decision. To do otherwise will institutionalize what the appellate is complaining of, that is miscarriage of justice. See Adeye v. Adesanya (2001) 6 NWLR (pt. 708) 1 SC, Enang v. Audu (1981) 11-12 SC 25; Ojonu v. Ajao (1983) 2 SCNLR 156; Fatoyinbo v. Williams (1956) SCNLR 274.” per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

DAMAGES: SPECIAL AND GENERAL DAMAGES; IN WHAT SITUATION IS GENERAL AND SPECIAL DAMAGES AWARDED TOGETHER BUT WHETHER WHERE A PARTY HAS BEEN COMPENSATED UNDER A HEAD OF CLAIM, IT WOULD AMOUNT TO DOUBLE COMPENSATION TO AWARD BOTH

It is indeed a correct statement of the law, as submitted by learned Counsel to the Cross Appellant that in some cases general and special damages may be awarded together. These occur for instance in a case of trespass. It was held in the case of Chief Okey Mbanaso V. Davidsmith Offor & Ors (2012) LPELR-19683 (CA) per Owoade JCA as follows:
“Truly, and as pointed out by the learned counsel for the Respondent, the law is settled that the award of both general damages and special damages if proved in an action for trespass to land does not amount to double compensation.” See also UTB Nigeria Ltd. v. Ajagbule (2006) 2 NWLR (Pt.965) 4 per Abba Aji JCA.

In appropriate cases both general and special damages can be claimed and awarded for a wrong suffered. The guidelines for the award of these categories are different in law. For instance where specific injuries are suffered as a result of a wrongful act, special damages can be awarded in addition to general damages that are deemed to flow naturally from the wrong act. See the case of Ozigbu Eng. Co. Ltd v. Iwuamadi (2009) 16 NWLR Part 1166 P.62
Where, however, a party has been compensated under a head of claim, it would amount to double compensation, I hold, and as submitted by learned Counsel to the Cross Respondent, to award him damages under another head.

In the case of Tsokwo Motors (Nig.) Ltd. v. U.B.A. Plc. (2008) 2 NWLR (Pt.1071) 347, the facts were that the trial court had ordered the Defendant Bank to re-credit the Plaintiffs account with the unlawful interest charged as a result of cheques of the Plaintiff wrongly dishonoured. It also awarded nominal damages. The Supreme Court per Aderemi, JSC held at Page 366 para B – C as follows:

“It has been repeatedly held by this court that where a victim of an injury has been fully compensated under one head of damages, it is improper to award him damages in respect of the same injury under another head. See Ezeani & Ors v. Ehdike (1964) 1 ALL NLR 402. I must not forget to say here that even having set aside the basis upon which the double compensation was awarded, the sum of N100,000.00 awarded as nominal damage is outrageous, the law will never allow it to stand.”
It was also held in the case of First Inland Bank V. Craft 2000 Ltd (2011) LPELR-4167 (CA) by my learned brother Isaiah Olufemi Akeju JCA Page 20 A-B that:

“The law is that a court should not allow the same party to have double compensation in respect of the same transaction. So where a Plaintiff has recovered fully under special damages such a Plaintiff will not be entitled to general damages. See Arison Trading v. Military Governor, Ogun State (2009) All FWLR (pt. 496) 1819; Artra Industries Ltd. v. N.B.C.I (1998) 3 SCNJ 98”.

Similarly, in the case of Ejowhomu v. Edok-Eter Ltd. (1986) NWLR (Pt.39) 1 the Court held that although the measure of damages in an action in tort is not the same as in an action in contract, the rule against double compensation remains the same, and applies to both. per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

Before Their Lordships

ISAIAH O. AKEJUJustice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIEJustice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAIJustice of The Court of Appeal of Nigeria

Between

ECOBANK PLC.Appellant(s)

AND

ALHAJI RABIU MOHAMMEDRespondent(s)

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): By an amended Statement of Claim dated 15/5/2001, the Respondent, as Plaintiff, sought, before the High court of Kaduna State, a declaration that the acts of the Appellant in the handling of the Respondent’s account at its Kaduna Branch amounted to “negligence, trafficking, a breach of banker/customer duties as well as conversion of the Plaintiffs (Respondent’s) funds without authority”. He sought payment of the sum of N7, 797,088.00 (Seven Million Seven Hundred and Ninety Seven Thousand and Eighty Eight Naira) as special damages arising from balances held/diverted by the Appellant due to negligence. He sought, in addition for general damages of N1 Million.

The matter proceeded to trial and Judgment was delivered. The Appellant was held to be in breach of the terms of its contract with the Respondent and awarded special damages of N2, 066,620.00 (Two Million Sixty Six Thousand, Six Hundred and Twenty Naira) were awarded. Other claims for special damages were refused. Also refused was the claim for general damages.

Dissatisfied with this Judgment, the Appellant appealed to this Court, by his Notice of Appeal of 27th September 2004, alleging grounds of error in law and misdirection on the facts. The Respondent cross appealed on the non-award to him of general damages. The Respondent/Cross Appellant, in addition to the Record of Appeal transmitted to this Court on 21/3/07 also filed an Additional Record of Appeal on 11/6/2010, pursuant to leave granted by this court, on 26/5/2010.

Counsel raised as a preliminary point of objection, the competence of Ground 3 of the Appellant’s Notice of Appeal. He submitted that the ground is deemed abandoned as no issues were formulated from it in the Appellant’s Brief of Argument. He cited the cases of Gwangwanri v. Tanimu (1996) 2 NWLR part 431 page 492, Agbaereh v Mimra (2008) 2 NWLR Part 1071 Page 409 and Ogbe v Asade (2009) 18 NWLR part 1172 Page 137 Para C. The Appellant’s issue for determination, he submitted, is limited to Grounds 1 and 2. Ground 3, having been abandoned, should be struck out. The response of the Appellant is that the lone issue formulated by the Appellant is supported by the said ground, which is the omnibus ground and distillable therefrom. He asked me to dismiss the preliminary Objection.

As attractive as it would be to engage in legal discourse on the competence or otherwise of the said ground, the same would serve no purpose, as, by the tacit concession of the Respondent’s Counsel, the other grounds of appeal are competent and so also the sole issue for determination raised by the Appellant. Appeals are determined on the issues raised for determination and not the grounds of appeal. See Agbaereh v Mimra (2008) 2 NWLR part 1071 page 409. Since the Appellant’s issue has not been said to be incompetent and since the success of the objection does not dispose of the Appellant’s appeal, I shall not indulge in an academic exercise but shall simply proceed to the determination of the appeal and cross appeal.

In the Amended Appellant’s Brief of Argument, settled by Ama Etuwewe of Dipo Onifade and Associates, a sole issue was raised for determination, to wit:

Whether in the circumstances of this case and having regard to the state of the pleadings and evidence led, the Respondent was entitled to the award of N2,066,620.00 made in his favour by the court as special damages.

The Respondent, in response to the Appellant’s Brief of Argument, and in support of his Cross Appeal, raised, in his “Amended Respondent’s/Cross-Appellant’s Brief of Argument”, settled by Lanre Olaoluwa of Matrix Solicitors, the following issues for determination:

“1. Whether – as contended by the Appellant – the Trial Judge erred in law when he awarded the sum of N2,066,620 to the Respondent as special damages and accordingly entered judgment in his favour.

2. Whether it was proper in law for the learned trial Judge to have premised the success (or otherwise) of the Cross-Appellant’s claim for general damages for negligent conduct solely on proof of wrongful dishonour of cheques;

3. Whether the trial judge erred in law when he failed to award general damages for the breach of contract and negligence of the Cross-Respondent.”

The issues that I consider arise for determination with respect to both the appeal and the cross appeal, culled from the issues raised are the following:

1. Whether in the circumstances of this case and having regard to the state of the pleadings and evidence led, the Respondent was entitled to the award of N2, 066,620.00 made in his favour by the Court as special damages.

2. Whether the trial Judge erred in law when he failed to award general damages to the Cross Appellant.

On the 1st issue for determination, which is whether in the circumstances of this case and having regard to the state of the pleadings and evidence led, the Respondent was entitled to the award of N2,066,620.00 made in his favour by the court as special damages, the Appellant submitted that the Respondent made a total claim of N4, 920,436.27 as special damages. There is nowhere in the Amended Statement of Claim where the Respondent made a specific claim for the sum of N2,066,620 awarded. A claim in special damages must be strictly proved and the court not enabled to make its own estimate.
There is no iota of admissible evidence to support any claim for special damages. The Auditor who alleged wrongful debits, was not called neither an audit report tendered. The lower Court did not evaluate the evidence and adduce reasons why he believes and disbelieves the evidence of the Respondent as against the evidence of the Appellant. The award can thus not stand and should be set aside. He cited the cases of Gonzee v. NERDC (2005) 1 NWLR part 943 p. 643 and Adecentro.

In his response, learned Counsel to the Respondent submits that the trial Judge was right in entering Judgment in the said sum. Proof required by the law is not extra-ordinary proof or beyond reasonable doubt. This court should not reverse the grant of damages. The grounds for which this Court can intervene in setting aside the Judgment of the Court have not been made out. He cited Guardian Newspapers Ltd v. Ajeh (2005) 12 NWLR Part 938 P. 221, NICON Hotels Ltd v. NDC Ltd (2007) 13 NWLR part 1051 p.226, SPDC (Nig) Ltd v. Tiebo (2005) 11 NWLR Part 931 p. 473 among a host of others.

In determining this issue, it is necessary to set out the facts that were before the Court and the findings of the trial Judge. The Respondent was the sole witness in proof of his claim. The Appellant called one witness, Tijani Aliyu, a Banker. The case of the Respondent before the lower Court is that he is an independent petroleum marketer. The mandate given by him to the Appellant Bank for the operation of the account opened in 1996, was that only his signature, properly verified, can authorize withdrawals of funds from the account. Various kinds of transactions were carried out through the account, deposits of money and other transfers into the account from his customers in Kano, Katsina, Sokoto and Zamfara. Sometime in March 1998 he was not allowed to withdraw the sum of N1 Million on the ground that his account was in debit of N200, 586.16 as at 17/11/97. By his estimation and the confirmation of his Auditors, his account should be in credit to the tune of about N2.5 Million, which sum he accused the Appellant of removing without his consent. He denied taking any overdraft.
The Appellant denied the claim, alleging that all withdrawals were allowed upon the receipt of the Respondent’s instructions, written or verbal. It stated that the Respondent on several occasions issued verbal instructions for withdrawals of funds from the account and subsequently confirmed such instructions in writing. The commissions and charges on the account were as a result of the account being overdrawn at various times. The witness tendered credit invoice receipts to show that the Respondent transacted business up to 28/4/1998.

The issues for determination raised by the trial Judge in his Judgment were the following:

1. Whether the Defendant’s conduct in operating the plaintiff’s account from 1996-1999 amounted to negligence, trafficking, breach of duty and conversion of the customer’s funds without authority.

2. Whether the Plaintiff is entitled to both special and general damages together.

In determining whether the Appellant had operated the account contrary to the Respondent’s mandate, the trial Judge considered the documents tendered by the parties including statements of account tendered by both parties, which statements he found in harmony. He observed that the Respondent’s account had consistently been in debit, being proof that the Respondent had been allowed to overdraw his account when he had no funds. The Court referred to correspondence between the parties in respect of the complaints made by the Respondent and held that the Respondent had failed to prove alteration of his cheques by the Appellant as alleged.

Going through the items of claim of the Respondent he held that the sums in “Exhibit 4” were not shown by the Appellant to have been withdrawn by the Respondent or upon his instructions. He referred to the admission of the Appellant in a letter written by them on this claim, and held the Appellant in breach of their duty to the Respondent not to pay out money from the Respondent’s account without his mandate or instruction. He therefore held the Appellant liable for the sums listed in paragraph C of Exhibit 4, particulars of which were specified in paragraph 12(a) of the Amended Statement of Claim in the total sum of N2,065,620 (Two Million Sixty Six Thousand, Six Hundred and Twenty Naira), as special damages for breach of contract. He dismissed the other claims of the Respondent for special damages on the ground that he had failed to establish them. He also dismissed the contention that the Appellant was responsible for the debit position on the account. He held that the Respondent had failed to establish that these charges were as a result of the transactions in Exhibit 4. He dismissed the claim for general damages.

If is this necessary to set out Exhibit 4 and paragraph 12 (a) of the Amended Statement of Claim in order to determine if the trial Judge’s award is backed by the pleadings and evidence.

The Amended Statement of Claim, I note is contained on pages 23 and 24 of the Record of Appeal. I set out paragraph 12 (a) thereof as follows:-

“12. Upon close study of the transaction update, the plaintiff discovered that the defendant had operated the account negligently and contrary to the Banker/Customer relationship between the plaintiff and the defendant and against all known banking law and practice/ethics, thus injuring the plaintiffs credit balances thus forcing the plaintiff not to operate the account since 1998 and stifling the business of the plaintiff by suffocating the account with unauthorized drawings of various sums, or spurious overdrafts charges and commissions. The plaintiff complained in writing to the Defendant. A copy of the plaintiff’s letter dated 27/9/99 is pleaded and shall be relied on at trial. The defendant is given notice to produce the original in court.

PARTICULARS OF NEGLIGENT/TAMPERING

a) The defendant between 4/2/98 and operated the account in ways other than so authorized by the plaintiff and unknown to banking law practice and ethics with the result that over N4,920,436.27 was diverted/moved out of the account by debit not duely authorize by the plaintiff as follows:

Date     Description           Amount (N)
3/1/97     Cash withdrawn           30,000.00
9/1/97     Cash withdrawn           18,000.00
13/1/97     Cash withdrawn           90,000.00
20/1/97     Value of B plus commission        800,525.00
23/1/97     Cash withdrawn           397,000.00
23/1/97     Cash withdrawn           34,000.00
23/1/97     Value of 2 BP plus commission       283,050.00
26/1/97     Value of 2 BP plus commission       462,150.00
7/10/97     Cheque No. 723478        412,000 (I drew Cheque of N400,000) = N12,000
26/1/95     Cash withdrawn           320,100.00
21/1/98     Cheque No. 960898       775,000 (but I drew Cheque of N700,000) = N75,000
22/1/98     Cash withdrawn           20,000.00
26/1/98     Cash withdrawn           320,000.00
2/2/98     Cash withdrawn           1,500,000.00
Total                4,361,825.00”.

I also set out Exhibit 4 contained in the Additional Record of Appeal.

“25th November, 1999

Alhaji Rabiu Mohammed,
Chairman/Managing Director,
Ingarma Nigeria Limited,
22 Kachia Road,
Opp. NUB Sabon Tasha,
Kaduna.

Dear Alh. Rabiu,

RE: LETTER OF COMPLAINT ON OPERATION OF A/C 102399-001: KADUNA

We acknowledge the receipt of your letter dated 27th September, 1999 received in our office on 15th October, 1999 on irregularities observed in the operation of your account 102399-001 at our Kaduna branch.

Based on your said letter, we carried out a detailed investigation into the operation of your account, particularly the various debits into the account which you claimed ignorance of. Please find below our findings:

a) Withdrawals you personally made through cheques signed by you: –

-N30,000 of 3/1/97
– N412,000 of 7/10/97 (This amount was initially N400,000. You amended this to N412,000 and duly countersigned the instrument).

– N775,000 of 21/1/98 (The amount on the cheque is N775,000.
There was no alteration on the cheque).
– N20,000 of 22/1/98

b) withdrawals by instruction(s) duly signed by you:
– N18,000 of 19/1/97
– N320,100 of 26/11/97
– N320,000 of 26/1/98
– N1,500,000 of 2/2/98

c) withdrawals/Bills payable by instruction(s):
– N397,000 of 13/1/97 (Cash)
– N90,000 of 13/1/97 (Cash)
– N800,525 (Bills payable to Finetex plus commission).
– N34,000 23/1/97 (Cash)
– N283,050 of 23/1/97 (2 Bills Payable of N141,000 each to FGN (Petroleum products) plus charges/commission).
– N462,150 of 26/2/97 (2 Bills Payable of N320,100 & N141,000 plus commission).

d) Overdrafts:
– Your account was overdrawn at various times. Sequel to payments made on your instructions when the account was not funded. The account was therefore debited for commission and charges which include the following:

Dates       Amounts (N)
23/10/97    5,000
28/10/97    5,000
10/11/97    10,000
11/11/97     19,633.55
13/11/97     35,000
20/11/97     36,000
2/12/97     10,000
22/12/97     50,000
26/2/98     23,000
10/7/98     14,194.55

As at today, your balance is in debit to the tune of N436,479.51 (Four Hundred and Thirty-Six Thousand, Four Hundred and Seventy-Three Naira, Thirty- Five Kobo).

We wish to assure you that the various debits were at your request as there was no foul-play on the part of our staff.

Kindly fix a date at your convenience to discuss further on this with our Kaduna Branch Manager.

We look forward to a continued banking relationship between you and our bank.

Yours faithfully,
For: INTERNATIONAL TRUST BANK PLC

Adeola Hamzat Andrew Onyilokwu
Internal Control. Ag. Group Head, Internal Control.”
(Emphasis mine)

The trial Court, in its judgment, granted only the claims in paragraph C of Exhibit 4 and disallowed the claims in the other paragraphs.

I note, from the foregoing that the claims in Exhibit 4 (c), which were granted by the Judge, are contained in paragraph 12 (a) of the Amended Statement of Claim.

In the instant case, the evidence given by the Respondent on this claim, I hold, was qualitative and credible and rightly accepted by the trial Judge. In addition, this claim was pleaded in paragraph 12 (a) of the Amended Statement of Claim of the Respondent. The addition of this claim in paragraph (c) of Exhibit 4, correctly adds up to the sum of N2, 066,620.00 awarded by the trial Judge. Contrary to the submission of Counsel to the Appellant, the decision of the trial Judge was not based on the belief or disbelief of the Appellant but on the scrutiny of the documents vis-a-vis the evidence before him.

Appellant’s Counsel has also complained that what was claimed was N4,920,436.27 but that the Judge awarded N2,066,620.00 which was not made a specific claim. The law however, is that a court may award less but not more than what the Party has claim. See First Bank of Nigeria Plc v. Oniyangi (2006) 6 NWLR part 661 p. 497 at 513 A per Onnoghen, JCA (as he then was).

“… that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the court of trial which had the opportunity of seeing, hearing and assessing the witnesses. Where a trial Court unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of an appellate court to substitute its own view for those of the trial Court. What an appellate court is required to do is simply to find out from the record whether there is evidence on which the trial Court could have acted or on which its findings are based, once this is achieved, the appellate court cannot interfere with the decision of the trial Court.”

In the case of Sule Anyegwu & Anor v. Aidoko Onuche (2009) 3 NWLR (Pt. 1129) 659 the Supreme Court, per Muhammad, JSC at page 674 Para I – G held that:

“It is a settled principle of law that where a trial court has carried its assignment satisfactorily, an appeal court shall be left with no option but to affirm such a decision. To do otherwise will institutionalize what the appellate is complaining of, that is miscarriage of justice. See Adeye v. Adesanya (2001) 6 NWLR (pt. 708) 1 SC, Enang v. Audu (1981) 11-12 SC 25; Ojonu v. Ajao (1983) 2 SCNLR 156; Fatoyinbo v. Williams (1956) SCNLR 274.”

The trial Judge in the instant case, I hold, was painstaking in his evaluation of the evidence before the Court. He was thorough in his consideration of the documents tendered. He applied the correct principles of law. I see no reason to disturb his finding on this award. I hold that the Respondent was entitled to the award of N2,066,620.00 made in his favour by the Court as special damages and resolve issue No 1 in favour of the Respondent and against the Applicant.

The 2nd issue for determination is the following:

Whether the trial Judge erred in law when he failed to award general damages to the Cross Appellant.

This issue arises from the Cross Appeal. The complaint of the Cross Appellant is that the trial Judge erred in law when he equated the Cross/Appellant’s claim for general damages for negligent conduct to wrongful dishonor of cheques. One of the reliefs being sought by the Cross Appellant was general damages for negligent conduct of the Cross Respondent. Despite the fact that the Cross Appellant did not base his claim on “wrongful dishonor of cheques, the Court held that due to the fact that the Respondent did not go further to seek to prove that he issued a cheque that was dishonoured and suffered damage, he cannot sustain a claim for entitlement to general damages. As neither of the parties advanced arguments in this regard, the extraneous conclusion of the trial Judge made him arrive at a wrong decision.

He argued further that where the banker fails to exercise the requisite care and skill with regard to handling a customer’s account, it will amount to negligence. The trial Judge, having evaluated the evidence and held the Cross Respondent to be in breach of the terms of the contract, failed to make an award for general damages for negligence.
Where a party is found to be negligent, the Claimant is entitled to both general and special damages. The account of the Cross Appellant having been thrown into negative balance to the tune of N375, 320.11 as a result of the Cross Respondent’s negligence, this Court should hold that the trial Court erred in law by failing to award general damages in the sum of N10 Million to the Cross Appellant. He cited the cases of Agbaneto v. UBN Ltd (2000) 7 NWLR Part 666 page 550, STB v. Anumnu (2008) 14 NWLR Part 1106 P. 150, Dare v. Fagbanila (2009) 14 NWLR Part 1160 P.202 and Ozigbu Eiglo Ltd v. Iwuamadi (2009) 16 NWLR part 1166 P. 62.

In response, Counsel to the Cross Respondent submitted that the trial Judge, even though he found that the Cross Appellant was in breach of the terms of the contract, held that the Cross Appellant suffered no damage; neither did the Cross Appellant prove that he suffered any damage. The “imputation” of negligence and dishonoured cheque as the basis of the refusal to grant general damages, he submitted, is that of the Respondent and not the Court, as the Court did not decide on negligence. A ground of appeal that does not derive from the Judgment appealed against is incompetent. Also a valid ground of appeal is against the order made by the trial Court rather than the reasons given in making the order. Where a party succeeds in an action for breach of contract, he is not entitled to any award of damages under general damages in addition to special damages. Where a victim of an injury has been fully compensated under one head of damages, it is improper to award him damages in respect of the same injury under another head. He cited the cases of Ative v. Kabel Metal (Nig) Ltd (2008) 10 NWLR Part 1095 P. 399, Tsokwa Motors Nig Ltd v. UBA Plc (2008) 2 NWLR Part 1071 P.347.
In the instant case, the trial Judge, in his judgment noted that the Appellant had sought both special and general damages arising from breach of contract and the tort of negligent. No injury had been suffered by the Cross Appellant, he held, by reason of his having been barred from his account. His evidence, is not that he had issued a cheque which was dishonoured. He can therefore not sustain a claim to injury suffered, entitling him to general damages. The question is thus whether the trial Judge was right to have refused the award of general damages.

In the instant case, the Cross Appellant, having been compensated by the trial Court for losses suffered by the Cross Respondent as a result of unauthorized transactions contrary to his mandate, cannot, I hold, be compensated by general damages, be it for negligence or otherwise, for the law will not sanction double compensation. In any event, and as rightly held by the trial Judge, the Cross Appellant failed to prove any injury or loss suffered by him, save for the award made of special damage.

There was no error committed by the trial Judge, I hold, in refusing to award general damages to the Cross Appellant. I resolve the 2nd issue for determination against the Cross Appellant.

In conclusion, in view of my resolution of the issues as I have done above, neither the substantive appeal nor the cross appeal have any merit and I dismiss them both. I affirm the judgment of the lower Court. Each party shall bear its own costs.

ISAIAH OLUFEMI AKEJU, J.C.A: I had a preview of the judgment just delivered by my learned brother, OLUDOTUN ADEBAYO ADEFOPE-OKOJIE
JCA, I agree with the reasoning therein and the conclusion that the appeal and cross appeal are lacking in merit. They are both dismissed by me with no order as to costs.

AMINA AUDI WAMBAI, J.C.A: I have had the privilege of reading in draft the judgment just delivered by my learned brother O.A. Adefope-Okojie JCA. I agree with the reasoning and conclusion reached that neither the substantive appeal nor the cross appeal has any merit. I agree that both be dismissed.

Appearances

A. S. YakubuFor Appellant

AND

Bayo Omole with Bayo Adetomiwa and D. D. OkorogbaFor Respondent