UNITED MICROFINANCE BANK LIMITED EKPAN v. MR. DUKE ADJAKA
(2015)LCN/7837(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 25th day of March, 2015
CA/B/177/2012
RATIO
PRACTICE AND PROCEDURE: ABUSE OF PROCESS OF A COURT; WHAT DOES THE ABUSE OF COURT PROCESS ENTAILS
The term abuse of process of a court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. Abuse of process can only mean the abuse of legal procedure on the improper use or misuse of the legal process. See AMAEFULE vs. THE STATE (1988) 2 NWLR (PT 75) 156 at 177. Abuse of process simply means that the process of court must be used bona fide and properly and must not be abused: ARUBO vs. AIYELERU (1993) 3 NWLR (PT 280) 126 at 142. The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and condition. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. It is recognised that the abuse of process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and interfering with the efficient and effective administration of justice. See SARAKI vs. KOTOYE (1992) 9 NWLR (PT 264) 156 at 188 E – G, CBN vs. AHMED (2001) 28 WRN 38 at 60 – 61 and MOGAJI vs. NEPA (2003) 8 WRN 42 at 53. The abuse of process will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues: OKORODUDU vs. OKOROMADU (1977) 3 SC 21 and OYAGBOLA vs ESSO WEST AFRICAN INC. (1966) 1 ALL NLR 170. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
PRACTICE AND PROCEDURE: THE MAXIM UBI JUS IBI REMEDIUM; WHAT DOES THE PRINCIPLE OF THE MAXIM UBI JUS IBI REMEDIUM ENTAILS
The maxim ubi jus ibi remedium is a principle of justice of universal validity that is available to all legal systems involved in the impartial administration of justice. The maxim enjoins the courts to provide a remedy whenever a plaintiff has established a right. The court cannot do otherwise as it is enjoined to eschew reliance on technicalities in the determination of disputes. See STATE vs. GWONTO (1983) 1 SCNLR 142 at 160. The substance of the action rather than the form should be the predominant consideration: BELLO vs A-G OYO STATE (1986) LPELR (764) 1 at 70, SALEH vs MONGUNO (2006) LPELR (2992) 1 at 27 and BFI GROUP CORPORATION vs. BUREAU OF PUBLIC ENTERPRISES (2012) LPELR (9339) 1. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
PRACTICE AND PROCEDURE: INTEREST; THE TWO TYPES OF INTEREST USUALLY AWARDED BY THE COURT
There are two types of interest usually awarded by the court namely: pre-judgment otherwise known as “interest as of right” and post-judgment interest, otherwise known as “discretionary interest”, which a court is allowed by the Rules of Court to award to a successful party at the end of the trial, at a rate fixed by the Rules. Pre-judgment interest must be claimed by a plaintiff in the writ of summons and statement of claim and evidence subsequently adduced in proof of it, failing which the court will not award of it. The award of pre-judgment interest can be made where it is contemplated in the agreement between the parties, under a mercantile custom and under the principle of equity such as breach of a fiduciary relationship. See EKWUNIFE vs. WAYNE (WA) LTD (supra) at 445, IDAKULA vs. RICHARDS (2001) 1 NWLR (PT 693) 111 at 122, 124 B- D and 124H – 125A and SANI ABACHA FOUNDATION vs. UBA PLC (2010) 1 NACLR 264 at 272. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
PRACTICE AND PROCEDURE: INTEREST; WHETHER A PLAINTIFF WHO CLAIMS INTEREST MUST IN ADDITION TO CLAIMING IT IN THE WRIT OF SUMMONS AND STATEMENT OF CLAIM PLEAD FACTS AND THE GROUNDS UPON WHICH THE CLAIM FOR INTEREST AT THE RATE CLAIMED IS BASED
It seems to be hornbook law that a plaintiff who claims interest must in addition to claiming it in the writ of summons and statement of claim plead facts and the grounds upon which the claim for interest at the rate claimed is based. See AZUMI vs. PAN AFRICAN BANK LTD (1996) 8 NWLR (PT 467) 462 at 472 and OBANTA COMMUNITY BANK LTD vs. AJAYI (2001) 33 WRN 119 at 128. The entitlement to interest must also be established by credible evidence: REO ENTERPRISES vs. NWOSU (2002) 11 WRN 16 at 33. There is no whit, iota or scintilla of evidence on the Records with regard to the claim for 21% interest. The Lower Court fully appreciated that the claim for pre-judgment interest was not made out but proceeded under the nebulous premise that “in some cases the court can grant a pre-judgment interest on a monetary or liquidated sum awarded to a successful party even where such a party did not plead or adduce evidence to prove it”, without showing how the peculiar facts of this matter fell within the ambit of “in some cases”. I gave due consideration to the decision of this court in PETGAS RESOURCES LTD vs. MBANEFO (supra) relied upon by the Respondent, but I agree with the submission of the Appellant in the Reply Brief that the decision is inapplicable as this court rightly found in the said case that the rate of pre-judgment interest claimed therein was proved. Hear my Lord,Denton-West, JCA in the lead judgment in the said case: “This Court has persistently held, that a claim for pre-judgment interest must be pleaded, set out in the writ of summons and statement of claim and filing fees calculated and paid on same and evidence must be led to substantiate the claim in the pleadings before the claim may succeed …The respondent has stated and led evidence on its plea of pre-judgment interest and so the learned trial judge had no option but grant the claim.” See PETGAS RESOURCES LTD vs. MBANEFO (2006) LPELR (6040) at 13. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
COURT: DUTY OF COURT; THE DUTY OF THE TRIAL COURT TO CONSIDER THE EVIDENCE ADDUCED IN FACTS ON WHICH ISSUES WERE JOINED, DECIDE WHICH EVIDENCE TO PREFER ON THE BASIS OF HOW THE EVIDENCE PREPONDERATES AND THEN MAKE LOGICAL AND CONSEQUENTIAL FINDINGS OF FACTS
A trial court has the duty to consider the evidence adduced in respect of any facts on which issues were joined, decide which evidence to prefer on the basis of how the evidence preponderates and then make logical and consequential findings of facts: ADEYEYE vs. AJIBOYE (1987) 1 NWLR (PT 61) 432 at 451 and STEPHEN vs. THE STATE (1986) 5 NWLR (PT 46) 978 at 1005. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
TORT: TORT OF NEGLIGENCE; WHETHER UNDER THE TORT NEGLIGENCE, LIABILITY CAN ONLY BE ESTABLISHED IF THE PLAINTIFF PROVES THAT THE DEFENDANT OWES HIM A DUTY OF CARE AND THAT HE SUFFERED DAMAGE IN THE CONSEQUENCE OF THE DEFENDANT’S FAILURE TO TAKE CARE
Now, under the tort of negligence, liability can only be established if the plaintiff proves that the defendant owes him a duty of care and that he suffered damage in consequence of the defendant’s failure to take care. A person must take reasonable care to avoid acts or omissions which he can reasonably foresee would be likely to injure persons who are so closely and directly affected by his acts or omissions that he ought reasonably to have them in contemplation. See AGBONMAGBE BANK LTD vs. CFAO (1966) ALL NLR 140, DONOGHUE vs. STEVENSON (supra) at 580, ABUSONMWAN vs. MERCANTILE BANK LTD (NO.2) (1987) 3 NWLR (PT 60) 196 and ORHE vs NEPA (1998) LPELR (2758) 1 at 187. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
UNITED MICROFINANCE BANK LIMITED EKPAN – Appellant(s)
AND
MR. DUKE ADJAKA
(Trading under the name and style of Ovi-Dus Electro Mech. (Nig) Enterprises) – Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A.(Delivering The Leading Judgment): This is an appeal against the judgment of the Federal High Court, Asaba Division delivered on 30th November, 2011. The facts as gleaned from the Records of Appeal disclose that the Respondent, who was the Plaintiff at the Lower Court, was awarded a contract for the construction of culvert by the Uvwie Local Government Council of Delta State. He entered into an understanding with one Lucky Adjekuko and Henry Baro for the execution of the said contract.
The terms of their understanding inter alia, included that payments on the contract would be made in the Respondent’s Business Name, Ovi-Dus Electro Mech (Nig) Enterprises. The Uvwie Local Government Council made a part payment of N1.52m and issued the cheque in the Respondent’s Business Name. Lucky Adjekuko collected the said cheque and without the knowledge of the Respondent opened an account with the Appellant in the Business Name of the Respondent, paid in the cheque and withdrew the value of the said cheque. Efforts made by the Respondent to recover the value of the cheque failed, consequent upon which he instituted proceedings contending that the Appellant was negligent in opening the account in his Business Name for Lucky Adjekuko and claiming monetary compensation from the Appellant.
After an inter partes hearing, the Lower Court entered the chafed judgment in favour of the Respondent. Being dissatisfied with the judgment, the Appellant appealed against the same on 23rd February, 2012. The Records of Appeal were compiled and transmitted on 28th June, 2012, but deemed as properly transmitted on 5th February, 2013, filed on 4th March, 2013 but deemed as properly filed on 5th February, 2014. The parties filed and exchanged briefs of argument. The Appellant’s Brief is dated 25th February, 2013, filed on 4th March, 2013 and deemed as properly filed and served on 5th February, 2014. The Appellant also filed a Reply Brief which is dated 16th April, 2014, filed on 17th April, 2014 and deemed as properly filed on 9th February, 2015. The Respondent’s Brief of Argument is dated and filed on 12th February, 2014.
At the hearing of the appeal, D.O. Jarikre, Esq., of Counsel who appeared for the Appellant adopted the submissions in the Appellant’s Briefs which were both settled by Chief V.E. Otomiewo and he urged the Court to allow the appeal and set aside the judgment of the Lower Court. In the same vein, C. Aghoja, Esq., learned Counsel for the Respondent adopted the submissions in the Respondent’s Brief and he urged the Court to dismiss the appeal and affirm the judgment of the Lower Court.
The Appellant distilled six issues for determination as follows:
“1. Whether the suit as constituted at the trial court is not incompetent and/or an abuse of the process of court.
2. Whether the learned trial judge was right when he held that there is a valid claim albeit not categorized as special or general damages,when the Respondent’s actions was founded on the tort of negligence.
3. Whether the learned trial judge was right to have awarded a pre-judgement interest when such was not specifically pleaded and proved or contemplated by parties.
4. Whether the learned trial judge was right and have not descended into the arena when he suo motu raised the issue of date and handwriting in Exhibits D & G to hold that the particulars of negligence stated by the Respondent and evidence led on them conclusively prove the breach of duty of care which the Appellant owed the Respondent.
5. Whether the Respondent has sufficiently proved the duty of care as to the relationship between the Appellant and the Respondent for the learned trial judge to infer that the relationship is sufficiently proximal to impose the duty of care.
6. Whether by the Respondents own admission that this suit was also brought against Lucky Adjekuko and Henry Baro at Effurun High Court and judgment had against them, this present suit against the Appellant does not constitute an abuse of court process.”
The Respondents adopted the six issues formulated by the Appellant and replied to the same in the Respondent’s Brief. I will therefore resolve this appeal based on the issues formulated by the Appellant. A convenient starting point would be Issue Numbers One and Six which raise the threshold issue of competence of the action. I would therefore take the said issues together.
ISSUE NUMBERS ONE AND SIX
Whether the suit as constituted at the trial court is not incompetent and/or an abuse of the process of court.
Whether by the Respondents own admission that this suit was also brought against Lucky Adjekuko and Henry Baro at Effurun High Court and judgment had against them, this present suit against the Appellant does not constitute an abuse of court process.
SUBMISSIONS OF THE APPELLANT
The Appellant submits that the Respondent’s claim is founded on the tort of negligence and that the Lower Court, the Federal High Court does not have the jurisdiction to entertain an action founded on the tort of negligence. It was posited that the jurisdiction of the Lower Court under Section 251(1)(d) of the 1999 Constitution is to entertain civil causes and matters connected with and pertaining to banking and it was maintained that the Respondents’ case did not fall within Section 251(1)(d). The definition of banking business under Section 61 of the Banks and Other Financial Institutions Act No. 25 of 1991 was referred to and it was opined that the Respondents complaint was a simple case of negligence.
It is the further submission of the Appellant that the facts disclose that the Respondent had sued and obtained judgment on the same set of facts at the Effurun High Court in Suit No. EHC/10/2003 against Lucky Adjekuko and Henry Baro, but that he brought the instant action because the said defendants were paupers and could not pay the judgment debt. It was contended that the Lower Court erred by holding that the judgment of the Effurun High Court was not exhibited when the said Suit was pleaded and the existence of the judgment admitted by the Respondent while being cross examined. The Appellant maintained that there was no further need to prove the said judgment since it had been admitted. It was therefore submitted that it was an abuse of process for the Respondent to have instituted this latter action. The cases of UBA PLC vs. MODE NIG LTD (2000) 12 NWLR (PT 680) 16 at 23B, SODIPO vs. LEMMINKAINEN OY (1992) 8 NWLR (PT 258) 229 and DZUNGWE vs. GBISHE (1985) 2 NWLR (PT 8) 528 at 529 were relied upon.
SUBMISSIONS OF THE RESPONDENT
The Respondent submits that the Lower Court had jurisdiction to entertain the action because the negligence complained about arose from a banking transaction and that when negligence is alleged against a bank in the performance of its banking duties, it is a banking matter within the intendment of Section 251(1)(d) of the 1999 Constitution. The cases of NDIC vs. OKEM ENTERPRISES LTD (2004) 50 WRN 1 at 79 and SOCIETE BANK (NIG) LTD vs. DE LIUCH (2005) 3 WRN 1 at 17 were referred to and it was maintained that even if the Respondent were the Appellant’s customer, the Federal High Court would still have the requisite jurisdiction to entertain the suit.
It is the further submission of the Respondent that facts not pleaded go to no issue. That the pleading is that a suit was initially instituted at the Effurun High Court but that the Delta State High Court had no jurisdiction. It was maintained that the evidence elicited under cross examination of the Respondent to the effect that the instant action was brought because the Defendants at the Effurun High Court were paupers and could not pay the judgment debt is not covered by the pleadings. It was argued that by Section 128 of the Evidence Act 2011, the only mode of proving the judgment of a court is by producing the judgment and that no other means of proof was acceptable. The case of FEDERAL GOVT OF NIG vs. ZEBRA ENERGY (2003) 105 LRCN 363 at 367 was referred to. The Respondent further submitted that for there to be an abuse of process, the action had to be against the same person, over the same subject matter and on the same issues, but that the Appellant was struck out of the suit at the Effurun High Court before the instant action was commenced. The cases of ADELEKE vs. OYO STATE HOUSE OF ASSEMBLY (NO.1) (2006) 5 WRN 174 and UMEH vs. IWU (2008) ALL FWLR (PT 418) 362 were cited in support. The Court was thus urged to hold that the Lower Court had jurisdiction and that this action was not an abuse of process.
RESOLUTION OF ISSUE NUMBERS ONE AND SIX
I redacted the facts leading on to this action at the outset of this judgment. It is as clear as crystal that the Respondent’s cause of action flows from the Appellant having opened an account for the said Lucky Adjekuko, in the business name of the Respondent thus making it possible for the said Lucky Adjekuko to take the proceeds of the cheque issued by Uvwie Local Government Council. The pertinent question to ask is whether the complaint of the Respondent that the Appellant was negligent in so opening the account falls within the purview of a banking transaction in order for the Lower Court to be imbued with jurisdiction under Section 251(1)(d) of the 1999 Constitution. Section 251(1)(d) stipulates as follows:
“Notwithstanding anything to the contrary contained in this and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-
(d) connected with or pertaining to banking, bond or other financial institution, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from Banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit promissory notes and other fiscal measures.”
The Appellant has referred to banking business as defined in Section 61 of the Banks and Other Financial Institutions Act as:
“The business of receiving deposit on current account, savings account or other similar account, pay or collecting Cheques drawn by or paid in by customers, provision of financial or such other businesses as the Governor may by order publish in the Gazette designated as banking business”.
Now, the set of facts which gave the Respondent his cause of action and right of action is the Appellant’s action of opening an account and collecting cheques paid in for the purposes of operating the said account.
It seems to me that this falls within the purview of banking business as defined in Section 61 of the Banks and Other Financial Institutions Act. The Respondents complaint is that the Appellant was negligent in carrying out this banking business. So the crux of the action is the banking business of the Appellant which it is alleged was conducted in a negligent manner. The phrase employed in Section 251(1)(d) of the 1999 Constitution is “Connected with” or “pertaining to” banking. This phrase was construed by the Supreme Court in THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIG LTD vs. ISAIAH (2001) LPELR (3205) 11 at 24 where Ogwuegbu, JSC stated:
“The verb ‘connected’ is defined … as joined; united by junction, by an intervening substance or medium, by dependence or relation, or by order in a series; whereas the verb ‘pertain’ is defined … to mean ‘to belong or connection with (something).”
Equally, this Court in NIGERIA LIQUIFIED NATURAL GAS LTD vs. GREEN (2009) LPELR (4600) 1 at 16 interpreted the phrases as:
“The English words ‘pertain’ means to belong, to relate, to belong as a part or accessory, to have reference to. The words ‘connected with’ means to tie or fasten together, to establish a relationship between, to associate.”
Using the above definitions to conualise the application of Section 251(1)(d) of the 1999 Constitution, it is evident that the Respondent’s cause of action belongs to, relates to, is an accessory to, has reference to, is tied and is joined to banking business of the Appellant, for which the Respondent alleged that the Appellant was negligent. Accordingly I am unable to agree with the Appellant that the Lower Court did not have jurisdiction to entertain the action.
The Appellant’s contention that the action is an abuse of process is premised on the argument that the Respondent had obtained judgment on the same set of facts in an action at the Effurun High Court and that the Respondent admitted this fact under cross examination, stating that he instituted this action because the defendants in the case at Effurun High Court were paupers and could not pay the judgment sum.
The term abuse of process of a court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. Abuse of process can only mean the abuse of legal procedure on the improper use or misuse of the legal process. See AMAEFULE vs. THE STATE (1988) 2 NWLR (PT 75) 156 at 177. Abuse of process simply means that the process of court must be used bona fide and properly and must not be abused: ARUBO vs. AIYELERU (1993) 3 NWLR (PT 280) 126 at 142. The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and condition. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. It is recognised that the abuse of process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and interfering with the efficient and effective administration of justice. See SARAKI vs. KOTOYE (1992) 9 NWLR (PT 264) 156 at 188 E – G, CBN vs. AHMED (2001) 28 WRN 38 at 60 – 61 and MOGAJI vs. NEPA (2003) 8 WRN 42 at 53. The abuse of process will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues: OKORODUDU vs. OKOROMADU (1977) 3 SC 21 and OYAGBOLA vs ESSO WEST AFRICAN INC. (1966) 1 ALL NLR 170.
While it is inherent in the power of a court to put an end to an action which is an abuse of its process, the court must exercise its power judicially and judiciously and with great circumspection: FASAKIN FOODS NIG CO. LTD vs. SHOSANYA (2003) 17 NWLR (PT 849) 237 at 247H – 248H. The processes in the action in Suit No. EHC/10/2003 at the Effurun High Court are not part of the Records. There is no way for this court to ascertain if the issues therein litigated are the same as the issues in the present action. Furthermore, the judgment said to have been delivered in the said action is not part of the Records. By virtue of the provisions of Section 128 of the Evidence Act 2011, the ipse dixit of the Respondent elicited under cross examination cannot be taken as proof of the judgment. The Evidence Act is explicit that except for the judgment itself, no other evidence of it may be given. In the absence of the processes in Suit No.EHC/10/2003, there is no way the Court can ascertain if the parties, issues and subject matter therein are the same as in the instant action. In the circumstances I am unable to hold that this matter is an abuse of process of Court. Issues numbers One and Six are accordingly resolved against the Appellant.
ISSUE NUMBER TWO
Whether the learned trial judge was right when he held that there is a valid claim albeit not categorized as special or general damages, when the Respondent’s action was founded on the tort of negligence.
SUBMISSIONS OF THE APPELLANT
The Appellant contends that a party is bound by his claim since a court will not grant a relief not claimed. It was posited that the Respondents claim at the Lower Court was neither categorized as special nor general damages and that the principle for assessment and award of special and general damages were different and varied from what obtains in an action in contract and one for tort. The cases of NEW NIGERIA BANK PLC vs. ABUBAKAR & SONS (2005) ALL FWLR (PT 260) 47 at 60, AGBANELO vs. UNION BANK (2000) 7 NWLR (PT 666) 534 and ROCKONOH PROPERTY CO. LTD vs. NITEL (2001) 14 NWLR (PT 733) 468 at 509H -510E were cited in support. The Appellant maintained that it did not have to show that the non-categorization of the relief as special or general damages occasioned a miscarriage of justice.
SUBMISSIONS OF THE RESPONDENT
The Respondent submits that the Lower Court was right to have awarded the relief claimed by the Respondent as the relief is clear and unambiguous. The Respondent maintained that the Appellant did not suffer any injury as a result of the non-categorization of the claim as general or special damages and that the Appellant did not show how the failure to categorize occasioned a miscarriage of justice. The Respondent asserted that the value of the Respondents cheque EXHIBIT C that was negligently paid by the Appellant to Lucky Adjekuko is N1.5m which is the loss suffered by the Respondent and the subject matter of the claim. It was finally opined that the Appellant’s contention on this issue sounds in technicality and that the current trend is that courts no longer allow technicality to defeat the justice of a case especially where no miscarriage of justice has been occasioned. The case of UKAEGBU vs. UGORJI (1991) 5 LRCN 1427 at 1444 was relied upon.
RESOLUTION OF ISSUE NUMBER TWO
The relief claimed by the Respondent at the Lower Court is as follows:
“WHEREFORE the Plaintiff claim from the Defendant One Million, Five Hundred and Twenty Thousand Naira together with interest at the bank lending rate of 21% from 22/11/2001 till the date of judgment and thereafter interest at the rate of 10% per annum from the date of judgment till whenever the judgment debt is paid.”
At the expense of prolixity, let me restate that the Respondent’s cause of action is that the sum of N1.5m paid to him by the Uvwie Local Government Council was withdrawn by Lucky Adjekuko as a result of the negligent action of the Appellant in opening an account for Lucky Adjekuko in his business name, thereby making it possible for Lucky Adjekuko to lodge in the cheque, get value and withdraw the money. The Respondent then claimed that the Appellant pay him the said N1.5m.
Without a doubt, the Respondent’s claim is clear and devoid of any equivocation. Should the fact that it was neither categorized as special or general damages deny the Respondent of a remedy when the Lower Court found that the Appellant’s conduct was negligent? I think not.
The maxim ubi jus ibi remedium is a principle of justice of universal validity that is available to all legal systems involved in the impartial administration of justice. The maxim enjoins the courts to provide a remedy whenever a plaintiff has established a right. The court cannot do otherwise as it is enjoined to eschew reliance on technicalities in the determination of disputes. See STATE vs. GWONTO (1983) 1 SCNLR 142 at 160. The substance of the action rather than the form should be the predominant consideration: BELLO vs A-G OYO STATE (1986) LPELR (764) 1 at 70, SALEH vs MONGUNO (2006) LPELR (2992) 1 at 27 and BFI GROUP CORPORATION vs. BUREAU OF PUBLIC ENTERPRISES (2012) LPELR (9339) 1.
The Lower Court having found that the Appellant had established his right was enjoined to provide a remedy and the remedy based on the relief claimed, being the amount paid by Uvwie Local Government Council is a proper decision to meet the justice of the case. Accordingly I must agree with the Respondent that the Appellant’s contention in this regard is resort to undue technicality. This issue is therefore resolved in favour of the Respondent.
ISSUE NUMBER THREE
Whether the learned trial judge was right to have awarded a pre-judgement interest when such was not specifically pleaded and proved or contemplated by parties.
SUBMISSIONS OF THE APPELLANT
The Appellant submits that the Lower Court erred in awarding post-judgment interest and misinterpreted Order 23 Rule 5 of the Federal High Court (Civil Procedure) Rules 2009 because the Lower Court compared interest in judgment sum with damages awarded in a suit, the Respondent’s case was in the tort of negligence not contract. It was further submitted that no evidence was led as to the bank interest rate and payment of interest was not contemplated by the parties as the Respondent did not allege or prove any fiduciary relationship with the Appellant. It was posited that the Lower Court having stated that pre-judgment interest had to be pleaded, and which was not done, erred in law by relying on Order 23 Rule 5 of the Federal High Court (Civil Procedure) Rules, 2009 to award pre-judgment interest. The case of AFRIBANK NIGERIA PLC vs. AKWARA (2006) ALL FWLR (PT 304) 401 at 421 was referred to.
The Appellant further contended that the Respondent did not plead the basis of the claim for pre-judgment interest and led no evidence in support thereof. It was further submitted that the award of pre-judgment interest must be based on statute, contract, mercantile custom or equity, provided that it is pleaded and evidence satisfactorily lead in support of it. The cases of ADEYEMI vs. LAN & BAKER NIG LTD (2000) 7 NWLR (PT 663) 33 at 48E and ABDULLAHI vs. WAJE COMMUNITY BANK (2000) 7 NWLR 663) 9 at 29F – G were cited in support.
SUBMISSIONS OF THE RESPONDENT
The Respondent submits that against the background of the fact that the Appellant is a bank whose business is trading with money, that the Lower Court was right to have awarded pre-judgment interest. It was contended that the Respondent claimed interest at the rate of 21% and the Appellant never challenged that rate of interest. The instances where pre-judgment interest may be claimed as set out in EKWUNIFE vs. WAYNE (WA) LTD (1989) 5 NWLR (PT 122) 422 at 455 was referred to and it was posited that the Respondent could claim pre-judgment interest under mercantile custom and under the principle of equity such as breach of fiduciary relationship. It was further submitted that on the authority of PETGAS RESOURCES LTD vs. MBANEFO (2007) 35 WRN 34 at 47, the court can award pre-judgment interest to a successful party even where such a party did not plead or adduce evidence to prove it, since such interest, like damages accrues from the defendant’s failure to pay the sum involved over a period of time thereby depriving the plaintiff from the use and enjoyment of the sum involved. It was contended that in cases brought in commercial matters, where money would have been paid for some time, it ought to carry interest and that where interest is awarded, though not claimed, it is in the nature of a consequential order made on the basis that the defendant has kept the plaintiff out of his money and the defendant has had the use of it for which he ought to compensate the plaintiff. The cases of NIGERIAN GENERAL SUPERINTENDENCE CO LTD vs. THE NIGERIAN PORTS AUTHORITY (1990) 1 NWLR (PT129) 741 at 748 and KANO ILE PRINTERS PLC vs. TUKUR (1999) 2 NWLR (PT 589) 78 were referred to.
RESOLUTION OF ISSUE NUMBER THREE
The Respondent has a rolled up claim for pre-judgment and post-judgment interest. In finding for the Respondent on the pre-judgment interest claimed the Lower Court held as follows at page 163 of the Records:
“Though the general principle is that a claim for pre-judgment interest must be pleaded, set out in the writ of summons and the statement of claim and evidence led to substantiate the claim in the pleadings, it must however be borne in mind, that in some cases, the court can grant a pre-judgment interest on a monetary or liquidated sum awarded to a successful party even where such a party did not plead or adduce evidence to prove it. Like damages, as is the position in the instant case, such interest naturally accrue from the Defendant’s failure to pay the sum involved over a period of time thereby depriving the plaintiff from the use and enjoyment of the sum involved.”
There are two types of interest usually awarded by the court namely: pre-judgment otherwise known as “interest as of right” and post-judgment interest, otherwise known as “discretionary interest”, which a court is allowed by the Rules of Court to award to a successful party at the end of the trial, at a rate fixed by the Rules. Pre-judgment interest must be claimed by a plaintiff in the writ of summons and statement of claim and evidence subsequently adduced in proof of it, failing which the court will not award of it. The award of pre-judgment interest can be made where it is contemplated in the agreement between the parties, under a mercantile custom and under the principle of equity such as breach of a fiduciary relationship. See EKWUNIFE vs. WAYNE (WA) LTD (supra) at 445, IDAKULA vs. RICHARDS (2001) 1 NWLR (PT 693) 111 at 122, 124 B- D and 124H – 125A and SANI ABACHA FOUNDATION vs. UBA PLC (2010) 1 NACLR 264 at 272.
Even if one were to accept the Respondent’s contention that because the Appellant is in banking business, it was right for the Lower Court to award pre-judgment interest; the pertinent question is whether there has been evidence to establish the rate of the pre-judgment interest. The Respondent claimed pre-judgment interest at the bank lending rate of 21% per annum. There is however no evidence whatsoever as to how this rate was arrived at. With regard to the Respondent’s contention that the Appellant did not dispute that the bank lending rate is 21%, this is not borne out by the pleadings. In the entire gamut of the statement of claim, the only reference to pre-judgment interest and the rate claimed is in paragraph 16 where the relief was claimed. This paragraph was denied in paragraph 9(h) of the Amended Statement of Defence and the Respondent put to strict proof of the same. There was therefore an inexorable need for the Respondent to prove that the bank lending rate was 21% since the burden of proof was on him. Sadly, no evidence was adduced in this regard by the Respondent.
It seems to be hornbook law that a plaintiff who claims interest must in addition to claiming it in the writ of summons and statement of claim plead facts and the grounds upon which the claim for interest at the rate claimed is based. See AZUMI vs. PAN AFRICAN BANK LTD (1996) 8 NWLR (PT 467) 462 at 472 and OBANTA COMMUNITY BANK LTD vs. AJAYI (2001) 33 WRN 119 at 128. The entitlement to interest must also be established by credible evidence: REO ENTERPRISES vs. NWOSU (2002) 11 WRN 16 at 33. There is no whit, iota or scintilla of evidence on the Records with regard to the claim for 21% interest. The Lower Court fully appreciated that the claim for pre-judgment interest was not made out but proceeded under the nebulous premise that “in some cases the court can grant a pre-judgment interest on a monetary or liquidated sum awarded to a successful party even where such a party did not plead or adduce evidence to prove it”, without showing how the peculiar facts of this matter fell within the ambit of “in some cases”. I gave due consideration to the decision of this court in PETGAS RESOURCES LTD vs. MBANEFO (supra) relied upon by the Respondent, but I agree with the submission of the Appellant in the Reply Brief that the decision is inapplicable as this court rightly found in the said case that the rate of pre-judgment interest claimed therein was proved. Hear my Lord,Denton-West, JCA in the lead judgment in the said case:
“This Court has persistently held, that a claim for pre-judgment interest must be pleaded, set out in the writ of summons and statement of claim and filing fees calculated and paid on same and evidence must be led to substantiate the claim in the pleadings before the claim may succeed …The respondent has stated and led evidence on its plea of pre-judgment interest and so the learned trial judge had no option but grant the claim.”
See PETGAS RESOURCES LTD vs. MBANEFO (2006) LPELR (6040) at 13.
The Respondent having failed to plead the facts and grounds on which the claim for pre-judgment interest was predicated, and having failed to adduce evidence to prove the rate of interest claimed was not entitled to the award of pre-judgment interest. I will therefore resolve this issue number three in favour of the Appellant.
ISSUE NUMBER FOUR
Whether the learned trial judge was right and have not descended into the arena when he suo motu raised the issue of date and handwriting in Exhibits D & G to hold that the particulars of negligence stated by the Respondent and evidence led on them conclusively prove the breach of duty of care which the Appellant owed the Respondent.
SUBMISSIONS OF THE APPELLANT
The Appellant submits that issues were never joined on the pleadings as to the validity of the certified copy of the specimen signature card, Exhibit D and the Affidavit to open account, Exhibit G and that it was not for the Lower Court to formulate and/or raise a case suo motu. That the Lower Court by forming an opinion as to the handwriting on Exhibit D went beyond comparison of writing which could be done in law and constituted itself as expert on handwriting without being one. The cases of UBA PLC vs. AYINKE (2000) 7 NWLR (PT 663) 83 at 102F-G and ACB PLC vs. NDOMA-EGBA (2000)8 NWLR (PT 669) 389 at 401 were referred to.
SUBMISSIONS OF THE RESPONDENT
The Respondent submits that the validity of the signature on Exhibit D and the date on Exhibit G was made an issue in paragraphs 13B, C and E of the Amended Statement of Claim and it was consequently not correct that the Lower Court raised the said issues suo motu. It was posited that Exhibits D and G were central to the Respondent’s case and they were tendered for the court to properly evaluate and ascribe probative value to them. It was contended that the findings of the Lower Court on the said Exhibits D and G were supported by the evidence on the Record. The Respondent posited that the Appellate Court should be reluctant to reverse the findings of the Lower Court which had the peculiar advantage of seeing the witnesses, watching their demeanour and hearing them testify. The case of BAKARE vs THE STATE (1987) 3 SCNJ 1 was referred to. It is the further submission of the Respondent that by Section 101(1) and (2) of the Evidence Act 2011, the Lower Court is enjoined to compare signatures where necessary and that a court can form its opinion by examining and comparing documents in a case involving handwriting. The case of UNIVERSAL TRUST BANK vs. AWANZIGANA ENT. LTD (1994) 6 NWLR (PT 348) 56 was cited in support. It was finally submitted that it is not the duty of the Appellate Court to interfere with the findings of a trial court where such findings are reasonable and supported by the evidence. That the duty of the Appellate Court is to determine whether the trial court correctly decided the issues before it. The case of BAMISHERI vs FALEYE (1987) 4 SC 1 at 28 was relied upon.
RESOLUTION OF ISSUE NUMBER FOUR
The trial judge is a peculiar adjudicator. He has the unparalleled advantage of seeing the witnesses testify. He observes their demeanour and it is within his province having seen, heard and assessed the witnesses to evaluate and ascribe probative value to the evidence adduced. The trial court has the duty to receive all available relevant evidence on an issue. This is perception of evidence. Afterwards, the court has the duty to weigh that evidence in the con of the peculiar circumstances of the case. This is evaluation of evidence. A finding of fact will entail both perception and evaluation of evidence. See GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592 G and WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50 -51.
In paragraphs 11 and 13 of the Amended Statement of Claim, the Respondent averred as follows:
“11. The Plaintiff avers that he arrested the defendants, Mr. Lucky Adjekuko and Henry Baro with the police when he discovered. The document handed over to the police by the defendants revealed that the defendants was privy to the fraud or were negligent in that they failed to comply with elementary banking procedure in opening the account and purportedly paying the proceeds to Lucky Adjekuko.
13. The Plaintiff avers that the defendant was negligent in opening account No. 407385 in plaintiff’s business name without complying with Banking Guideline: viz.
(A) There was no application from Ovi-Dus Electro Mech (Nig) Enterprises on its Letter Headed Paper and duly stamped and signed by the plaintiff authorizing the opening of any account with the defendant.
(B) The specimen signature card shows clearly that account No. 407385 was a Joint Account between Lucky Adjekuko and the Plaintiff, plaintiff signature column was not signed.
(C) The specimen signature card was not authenticated by any staff of the defendant even though it is dated 22/11/2001.
(D) The account was opened with One Thousand Naira yet the defendant did not verify the source of the cheque or demand the contract documents.
(E) The mandate form bears plaintiff’s name but plaintiff did not sign the signature column in the mandate form.
(F) Plaintiff’s business being a sole proprietorship, plaintiff cannot authorize any one to open and operate an account on his behalf.
(G) The Defendant opened the account without demanding to see the original Certificate of Registration which was in possession of the Plaintiff throughout all relevant times and so it could not have been produced by Lucky Adjekuko.
(H) There ought to be two Referees to open a business account and not one as in the instant case.
(I) The Plaintiff shall rely on all relevant documents recovered by the police and/or tendered in suit No. EHC/10/2003.”
By these averments, the Respondent put in issue whether the proper procedure was followed in the opening of the account for Lucky Adjekuko by the Appellant. The Appellant joined issues on due process having been followed in opening the bank account in paragraphs 4, 5 and 7 of the Amended Statement of Defence where it averred as follows:
“4. In answer to paragraph 9 of the Plaintiff’s statement of claim, the defendant is not aware of any connivance between the plaintiff and/or any other party.
5. Defendant states that with regard to paragraph 10 of the statement of claim, the opening of the account by the Messrs Lucky Adjekuko, and Henry Baro with the defendant’s bank was not in pursuance of any conspiracy and adds that all necessary banking requirements/procedure in relation to the opening and operation of accounts were complied with before the account was opened.
7. The defendant avers that it has no knowledge of some of the fact alleged in paragraph 13 of the statement of claim. The defendant further avers that it took the said cheque in good faith and for value and without any notice of any defect in title and that the disputed account was opened by the defendant bonafide with due diligence and in substantial compliance with all known rules of banking procedure regulating the opening and operating of such account in community Bank.”
It is therefore clear that on the state of the pleadings the parties were at issue on whether the bank account was opened in accordance with the proper procedure. In keeping with the duty of the trial court on perception of evidence, the court admitted Exhibits D and G in evidence. Thereafter the court had the duty to evaluate the evidence in order to arrive at the value to give to the evidence by assessing the same to know which of the parties has more preponderant evidence. See ONWUKA vs. EDIALA (1998) 1 NWLR (PT 96) 182 at 208- 209 and AMEYO vs. OYEWOLE (2008) LPELR (3768) 1 at 9.
The evidence before the Lower Court is that the account was opened on the strength of the affidavit, Exhibit G. Having received the affidavit in evidence (perception of evidence) the Lower Court in evaluating the evidence found that while the account was opened on 22nd November, 2001, Exhibit G, on the basis of which the account was said to have been opened was deposed to on 23rd November, 2001. In assessing the specimen signature card, Exhibit D, the Lower Court found as pleaded by the Respondent in paragraph 13B of the Amended Statement of Claim that the Respondent did not sign the column he was meant to sign on the said specimen signature card. In further evaluation the Lower Court held that the handwriting on Exhibit D seemed to have been made by one person. A trial court has the duty to consider the evidence adduced in respect of any facts on which issues were joined, decide which evidence to prefer on the basis of how the evidence preponderates and then make logical and consequential findings of facts: ADEYEYE vs. AJIBOYE (1987) 1 NWLR (PT 61) 432 at 451 and STEPHEN vs. THE STATE (1986) 5 NWLR (PT 46) 978 at 1005.
The parties having joined issues on the pleadings on whether the bank account was properly opened in accordance with due process, the complaint of the Appellant that the Lower Court raised the issue suo motu is unfounded. There is nothing to be deprecated in the conduct of the Lower Court in the discharge of its primary duty of evaluating the evidence. The evaluation of evidence and the findings made by the Lower Court have ample support in the evidence on record. The said findings are not perverse, and there is no basis for this appellate court to intervene: EDJEKPO vs. OSIA (2007) 8 NWLR (PT 1037) 635 or (2007) LPELR (1014) 1 at 44 – 47 and FASIKUN II vs OLURONKE II (1999) 2 NWLR (PT 589) 1 or(1999) LPELR (1248) 1 at 47 – 48. The inevitable conclusion is that this issue is resolved against the Appellant.
ISSUE NUMBER FIVE
Whether the Respondent has sufficiently proved the duty of care as to the relationship between the Appellant and the Respondent for the learned trial judge to infer that the relationship is sufficiently proximal to impose the duty of care.
SUBMISSIONS OF THE APPELLANT
The Appellant submits that the tort of negligence arises when a legal duty owed by the defendant to the plaintiff is breached. It was submitted that to succeed in an action in negligence, the plaintiff must prove that the defendant owed him a duty of care, that the duty was breached and that he suffered damages from the breach. The case of AKU NMECHA TRANSPORT SERVICE vs. ATOLOYE (1993) 6 NWLR (PT 298) 233 was referred to. The Appellant maintained that it never owed a duty of care to the Respondent as the Respondent was not its customer. It was posited that before there can be a duty owed to the Respondent by the Appellant there ought to be a relationship between them. It was further argued that even if the Appellant was negligent, the Respondent did not establish the case of negligence against the Appellant as the Respondent’s evidence is equally consistent with negligence on his part since having partnered with Lucky Adjekuko and Henry Baro and agreed with them that payment should be made in the business name of Ovi-Dus Electro Mech Enterprises, he cannot turn round to hold the Appellant negligent for opening the said account.
SUBMISSIONS OF THE RESPONDENT
The Respondent referred to the locus classicus on the duty of care, the case of DONOGHUE vs STEVENSON (1932) AC 562 at 579 on the neighbour principle, submitting that reasonable care must be taken to avoid acts which are likely to injure your neighbour; the neighbour being any persons who are closely and directly affected by the act that they ought to be had in contemplation as being affected when doing the act or omission called in question. It was posited that the Appellant’s act called into question was the opening of the account by Lucky Adjekuko and the payment therein of the cheque of N1.5 Million when from the testimony of the Appellant’s witness, the Appellant knew that Lucky Adjekuko was not the owner of the business name. The case of NBC PLC vs. BORGUNDY (1992) 2 NWLR (PT 591) 408 at 427 was referred to on negligence being the omission to do something which a reasonable man would do or the doing of something which a reasonable man will not do. It was therefore opined that a reasonable banker will not open an account in a name that he knows does not belong to the potential account owner and also pay a cheque he knows does not belong to the potential account owner. The Respondent therefore concluded that since the Appellant knew before opening the account that the name and cheque do not belong to Lucky Adjekuko, it owed the owner of the business name and the cheque a duty of care since it ought to know that its act will directly affect the owner of the business name and the cheque. Moreso, when the affidavit relied upon as authority for opening the account for Lucky Adjekuko was deposed to after the account had been opened.
RESOLUTION OF ISSUE NUMBER FIVE
Now, under the tort of negligence, liability can only be established if the plaintiff proves that the defendant owes him a duty of care and that he suffered damage in consequence of the defendant’s failure to take care. A person must take reasonable care to avoid acts or omissions which he can reasonably foresee would be likely to injure persons who are so closely and directly affected by his acts or omissions that he ought reasonably to have them in contemplation. See AGBONMAGBE BANK LTD vs. CFAO (1966) ALL NLR 140, DONOGHUE vs. STEVENSON (supra) at 580, ABUSONMWAN vs. MERCANTILE BANK LTD (NO.2) (1987) 3 NWLR (PT 60) 196 and ORHE vs NEPA (1998) LPELR (2758) 1 at 187.
The contention of the Appellant is that because the Respondent is not its customer, it did not owe any duty of care to the Respondent. It seems to me that the categories of duty of care is not a closed shop. Whether a duty of care is owed depends on the peculiar circumstances which gives rise to the duty to take care. It must relate to the standards of the reasonable man in order to determine if any particular relationship gives rise to a duty to take care as between those who stand in that relation. In DONOGHUE vs. STEVENSON (supra), a duty of care was held to exist notwithstanding that there was no privity of contract between the plaintiff and the manufacturer as the court held that the manufacturer had a duty to take care towards potential customers as they ought reasonably to have them in contemplation as persons closely and directly affected by his acts or omissions. The case of HEDLEY BYRNER CO. LTD vs. HELTER & PARTNERS LTD (1964) A.C. 465 also shows that bankers owe a duty of care to persons whose Bank is making an enquiry on their behalf. See also OLAM (NIGERIA) LTD vs. INTERCONTINENTAL BANK LTD (2009) LPELR (8275) 1 at 50 – 51.
In deciding that the Appellant did not owe a duty of care only to its customers, the Lower Court at pages 166 – 167 of the Records stated as follows:
“I must state here that the Courts have moved away from a case to case analysis of relationships that will impose a duty of care on a Defendant to a unifying principle.
In the case of TECHNO MECH (NIG) LTD vs OGUNBAYO (2000) 14 NWLR (Pt. 639) page 150 at 166 paragraphs F – G, the Court held that where there is sufficient relationship of proximity or neighbourhood prima facie duty of care arises between the wrong doer and the person who has suffered damages. Thus by virtue of EXHIBIT ‘G’ and evidence led by the parties at the trial, it is clear that the Defendant at one time or the other had something to do with the Plaintiff’s business name and the cheque of N1,520,000.00 issued in his business name. With the Plaintiff’s cheque passing through the hand of the Defendant in the circumstance of this case, no relationship can be more proximal as to impose a duty of care on the Defendant and going by the authority of TECHNO MECH (NIG) LTD vs OGUNBAYO (supra), it is crystal clear that the Plaintiff needs not be a customer of the Defendant in order to ensure that the proceed does not go into a wrong hand but it suffices that the Defendant was instrumental to the payment of the cheque to Mr. Lucky Adjekuko.
With the above in mind, I hold that the relationship between the Plaintiff and the Defendant was sufficiently proximal to impose a duty of care.”
In concluding that the Respondent proved that the Appellant owed him a duty of care, the Lower Court at pages 168 – 169 of the Records held that Exhibit G, the affidavit by which Lucky Adjekuko was allegedly authorised to open the account was deposed to the day after the account was opened and that Exhibit D, the specimen signature card which has the name of the Respondent was never signed by the Respondent.
It does appear that in the peculiar circumstances of this matter, the finding of the Lower Court that the Appellant owed the Respondent a duty of care cannot be impeached. The evidence shows that before the account was opened the Appellant knew that the business name did not belong to Lucky Adjekuko, the Appellant still proceeded to open the said account for him, which was not a reasonable thing to do in the circumstances. The reliance on Exhibit G as authorisation for opening the account falls flat on its face since it is evident that the account had been opened before Exhibit G was deposed to. Furthermore, the signature mandate card, Exhibit D which had the Respondent as a signatory was never signed by the Respondent, showing that at best, the account opening process was inchoate; this notwithstanding, the Appellant took the unreasonable step of perfecting the opening of the account. It is beyond disputation that on the set of facts presented in this matter, a reasonable person would have taken care to avoid the act of opening the account since it was reasonably foreseeable that the action was likely to closely and directly affect the Respondent. The Appellant however threw caution to the winds and it must therefore reap the just desserts of having failed to exercise due diligence as a reasonable man would have.
It cannot be argued that as a result of this breach of the duty of care owed, the Respondent suffered damage as the said Lucky Adjekuko was able to fleece the Respondent of the proceeds of the cheque issued by Uvwie Local Government Council. In a summation this issue number five has to be resolved in favour of the Respondent. The available evidence and circumstances of this matter support the decision of the Lower Court that the Appellant owed a duty of care to the Respondent which it breached, consequent upon which the Respondent suffered damages.
CONCLUSION
It seems that all that needs to be said in this matter has been said and what needs to be written has been written. Of the six issues distilled for determination, five have been resolved against the Appellant. The sole success recorded by the Appellant on account of which the appeal succeeds in part is in respect of issue number three on the pre-judgment interest awarded by the Lower Court. The said award by the Lower Court is hereby set aside.
For the avoidance of doubt and in order to conduce to the utmost pellucidity, the judgment of the Lower Court in Suit No. FHC/ASB/CS/68/2009 delivered on 30th November, 2011 as it relates to the award of pre-judgment interest is hereby set aside. The other awards in the judgment are affirmed. The Respondent is entitled to the sum of N1,520,000.00 (One Million Five Hundred and Twenty Thousand Naira) as compensation for the loss occasioned by the negligence of the Appellant. There shall be 10% interest per annum on the said judgment sum from the 30th day of November 2011 until the judgment sum is paid. The Respondent is entitled to the sum of N50,000.00 being the costs of this appeal.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother UGOCHUKWU ANTHONY OGAKWU, J.C.A. I am in complete agreement with his reasoning and conclusion that the appeal be dismissed. However the award of pre-judgment interest must be set aside. Even though the award of pre-judgment interest may be justified on the principles of equity, because of the breach of the duty of care, the award cannot be made by the rule of thumb. It must be based on admissible evidence of the banking rate of interest at the time.
For the above and fuller reasons exhaustively dealt with by my learned brother in the lead judgment I dismiss the appeal and affirm the orders of the trial court except the award of pre judgment interest. I also abide by all the orders in the lead judgment.
HAMMA AKAWU BARKA, J.C.A.: I read before now the judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, J.C.A. I agree with his reasoning and conclusions. I also abide by the orders therein including the order as to costs.
Appearances
D. O. Jarikre, Esq. for the AppellantFor Appellant
AND
C. Aghoja, Esq. (with Mrs. E. Udubraye and T. E. Ulinfoh, Esq.)For Respondent
