CITIBANK NIGERIA LIMITED v. GRATIS PROPERTIES LIMITED (2015)

CITIBANK NIGERIA LIMITED v. GRATIS PROPERTIES LIMITED

(2015)LCN/7904(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 16th day of June, 2015

CA/L/501/2004

RATIO

BANKING LAW: DUTY OF A BANK; THE DUTY OF THE BANK TO HONOR ITS CUSTOMER’S CHEQUES

It is settled that a Bank has a duty to honour its customer’s cheques, and as long as the customer has sufficient funds to cover the amount on a cheque, the refusal to honour the cheque will amount to a breach of contract – see Citibank v. Ikediashi (supra), Balogun v. National Bank (1978) 3 SC 11, Osawaye v. National Bank (1974) NCLR 474 and Allied Bank of Nig. Ltd. v. Akubueze (1997) LPELR-429 (SC) where the Supreme Court observed –
“The first basic point that must be made is that a bank is bound to honour a cheque issued by its customer if the customer has enough funds to satisfy the amount payable on the cheque in respect of the relevant account. Refusal to honour the cheque will amount to a breach of contract which would render the banker liable in damages. So too, when the banker credits the current account of its customer with some money, the banker becomes a debtor to the customer in that sum – – Conversely, when a banker debits the current account of its customer with a certain sum, the customer becomes a debtor to the bank in that sum. Whichever party is the creditor is entitled to sue the other if demand for payment was made but not honoured”. [Per Iguh, JSC] per. AMINA ADAMU AUGIE, J.C.A.

BANKING LAW: CLOSURE OF ACCOUNT; THE DIFFERENCE BETWEEN CLOSURE OF AN ACCOUNT BY A CUSTOMER AND BY A BANK

There is also a difference between closure of an account by a customer and by a bank – see D. Stephens Ind. Ltd. v. BCCI (1999) 11 NWLR (Pt. 625) 29, wherein the Supreme Court per Uwaifo, JSC, explained the difference thus-
“- – Lord Chorley, who is regarded as a leading authority on Banking Law says in his Law of Banking, 6th Ed., page 346 –
“Since the customer is entitled to withdraw his balance on demand, it would appear that he is under no obligation to give any advance notice of his decision to close his account – – the closing of the account does necessarily bring mutual obligations to an end. The customer clearly remains liable for any overdraft and the banker for properly conducting any operation needed in connection with the closure”.
It is therefore open to the customer to give an oral instruction to have his account closed at once although he would not be able to take out whatever remains as credit therein until a proper settlement of obligations on both sides is carried out. But the banker is entitled to act on the notice without delay. It is when it is the banker who decided to have the account of the customer closed that he must give the customer reasonable notice in case there are outstanding cheques to he cleared or some business the customer intends to conclude through the bank account – see Joachimson v. Swiss Bank Corpn. (1921) 3 KB 110 at p.127 where Lord Atkin, L.J. said –
“It is a term of the contract that the bank will not cease to do business with the customer except upon reasonable notice”.
This is – – when it is the banker, who initiates the ceasing of doing business with the customer; in other words, wants to close the account of the customer. – – The customer must, therefore, be given time by the banker to make such arrangements as are necessary to protect his credit and credibility”. As regards the situation in that case, Uwaifo, JSC, went on to say as follows-
“The relationship of banker and customer depends basically on the ordinary principles of contract, and it could, at least in theory, be brought to an end by mutual agreement, by notice given by the customer or by the banker, by the death of the customer, by the mental disorder of the customer, and by bankruptcy or winding up of either party – – In the present case, it was terminated by the notice given by the 2nd Appellant (a customer). Therefore, as at the date (8/8/1984) when the Appellant’s cheque in question reached the Respondents, the relationship of banker and customer had come to an end and the Respondents were justified in not paying the said cheque. – – The Respondents owed the Appellants no further obligation, and had no cause, to refrain from endorsing the said cheque the way they did, namely, “Drawer’s attention required”, that was one way they could secure the Appellants’ attention and if need be, warn them to issue no more cheques on that closed account because they would not be honoured. Of course, the Respondents might well have endorsed the cheque “Account Closed” or “No Account” to finally bring it home to the Appellants that they cannot make any unwarranted use of that account.” per. AMINA ADAMU AUGIE, J.C.A.

BANKING LAW: TRADING AND NON-TRADING CUSTOMER; DISTINCTION BETWEEN TRADING AND NON-TRADING CUSTOMER AND WHETHER TRADING CUSTOMERS NEED TO PROFFER ANY EVIDENCE OF ANY ACTUAL DAMAGE TO BE AWARD DAMAGES

The Respondent is right, in the circumstances of this case, it does not have to proffer any evidence of any actual damage to be awarded damages –
See Allied Bank v. Akubueze (supra), where Ogwuegbu, JSC, observed –
“As to damages, a banker is bound by law to pay a cheque drawn by a customer, within a reasonable time after the bank has received sufficient funds belonging to the customer. The latter may maintain an action in contract against the banker for refusing payment of a cheque under such circumstances although he has not thereby sustained any actual damages – – In Marzettei’s case (supra), a trader sued his bankers for wrongful dishonor of cheque although there was no evidence to show that the Plaintiff sustained any injury from the banker’s mistake, Lord Tenderden C.J., remarked:-
“I cannot forbear to observe that it is a discredit to a person and – – injurious in fact, to have a draft refused payment for a small sum, for it shows that the bankers had very little confidence in the customer. It is an act particularly calculated to be injurious to a person in trade.”
The case, therefore, puts it beyond doubt that where a banker without justification dishonours his customer’s cheque, he is liable to the customer in damages for injury to his credit and if the customer is also “in trade” at the time of such dishonour, then damages for such injury will be at large and a judge or jury may within reason award substantial damages although there is no evidence from such a customer of any actual damage suffered by him. In the case of a non-trader, the converse is the law i.e. that in an action by a “non-trader” for wrongful dishonour of cheque by his bankers, only nominal damages should be awarded unless the non-trader pleaded and proved actual damage in which case substantial damages may be awarded”.
In other words, in this class of cases, a distinction is drawn between trading and non-trading customers. As regards trading customers or customers in business, the law presumes injury to them without proof of actual damage, and they are entitled to substantial damages although they neither pleaded nor proved actual damage – see Hairat A. Balogun v. N.B.N. Ltd. (supra), where the question before the Supreme Court was whether the Appellant – a legal practitioner – was entitled to substantial damages for the dishonour of her cheque without any allegation in her pleadings, of special or actual damage flowing from such dishonour of the cheque or the proof of same. The Supreme Court per Idigbe, JSC, in deciding in her favour, held thus –
“- – While it is true that a trader is in business, all persons in business are not necessarily traders; for instance, the ordinary citizen who, daily exhibits his various articles or stock-in-trade in the market for the purpose of selling for gain is engaged in business and is a trader but the citizen who runs a private school although engaged in business can hardly be referred to as a trader. Although a “person in trade” is a person engaged in business, he is not necessarily a trader; but a trader is necessarily engaged in business. Therefore, we prefer the expression “person in trade” for it refers to persons engaged in some occupation, usually skilled but not necessarily learned, as a way of livelihood. That being the view we take of the expression “persons in trade” a class of people against whom – in the words of Lord Tenterden – a banker’s act of wrongful dishonour of cheque is “particularly to be injurious”, we find it difficult to exclude all “non-traders” that is, all persons who are not traders (and this is, all ‘persons in business’ or “persons in trade” from the ambit of the “exception” enunciated in Rolin v. Steward (Supra) (i.e. that damages in cases of dishonour of a “trader’s” cheque are, in the absence of proof of actual loss, “at large”). We respectfully prefer the view that – “the corollary of the proposition laid down by the cases of Marzetti (Supra) and Rolin (Supra) is the law; and it is that a person who is not engaged in business (or who is not in business) is not entitled to recover substantial damages for wrongful dishonor of his cheque, unless the damages which he suffered is alleged and proved as special damages.” This – – is a re-statement of the proposition of Lawrence J, in the case of Gibbons (Supra) subject to the qualification that we prefer the expression “person who is not engaged in business” to “person who is not a trader” – – it is our view that the expression “not in business in the re-stated proposition takes care of the principles of law involved, which is that “only people engaged in business need recover substantial damage without proof of actual loss because of the damage deemed to be necessarily done to their credit, and/or reputation in business, by unjustified action of the bankers per se the act could imply, unjustifiably, insolvency or dishonesty on the part of the person engaged in business. – – –
We see no reason why, properly applied, the principles enshrined in the exception – – for measure of damages in contract – – should not extend to estate agents, auctioneers, solicitors in practice, stockbrokers and possibly all classes of commercial agents. – – any other view of the proposition could lead to the absurd, if not ridiculous – situation where a “petty trader” becomes entitled to substantial damages for the dishonour of his cheque – – merely because he is a “trader” whereas a reputable auctioneer or estate agent, or solicitor in practice can obtain only nominal damages unless he can show that actual damage resulted from such act of dishonour of his cheque. – – In Rolin v. Steward (Supra) – – There was no evidence – that the Plaintiffs had sustained any special damage but His Lordship, in leaving the case to the jury told them that they ought not to limit their verdict to nominal damages, but should give the Plaintiffs “such temperate damages as they should judge to be reasonable compensation for the injury they must have sustained for the dishonour of their cheques”, and Williams, J. in concurring with the views of Crosswell & Crowder JJ., had these pertinent observations to make –
“- – – As to the alleged misdirection, I think it cannot be denied, that if one who is not a trader were to bring an action against a banker for dishonouring a cheque at a time when he had funds of the customer’s in his hands sufficient to meet it, and special damage was alleged and proved, the Plaintiff would be entitled to recover substantial damages. And when it is alleged and proved that the Plaintiff is a trader, I think it is equally clear that the jury in estimating the damages, may take into their consideration the natural and necessary consequences, which must result to the Plaintiff from the Defendant’s breach of contract; just as in the case of an action for slander of a person in the way of his trade, or in the case of imputation of insolvency on a trader, the action lies without proof of special damage – -“.
The [underlined] portion of the quotation – – underscores the reason why the Courts have not insisted that a person whose business credit is damaged by the act of wrongful dishonour of his cheque should either bring a separate action for defamation, or prove actual loss before a jury should award him substantial damage. The sting of damage to the person in business lies, we think, in the slanderous nature and effect of the act of dishonour of the cheque, per se, After all, it is well known that slander exists as much in spoken words in gestures or action. “Sometimes a mere act may convey a defamatory imputation if it would be so understood by reason of a conventional meaning – or by reason of the inferences to be drawn from it, whether by the ordinary man, or by some person with special knowledge to whom it was published.” (See Gatley on Libel & Slander 7th Ed) – – . It is well known that a customer whose cheque is wrongfully dishonoured can always bring claims for defamation and breach of contract together in one single action. That the courts have not in this class of cases insisted, on the Plaintiff bringing a separate action for slander or on proof of actual loss justifies our view that the rison d’etre for award of substantial damages – – is to be found in the view which the law takes of the peculiar nature of the damage which the act of dishonour of cheques – is deemed to have on the credit of a trader and/or business man, or, on the general reputation of man in business, just as in the case of slander of a person in the way of his trade or business.
And when, of course, in addition to an act of dishonour of a cheque the banker, as in the case in hand, makes a libellous endorsement thereon, the customer may in addition to a claim for damages for breach of contract bring also in the same action a claim for damages for libel. Sometimes in such cases the two claims have been dealt with without any marked differentiation; one of such instances occurred in Allen v. London County & Westminster Bank (1915) 31 T.L.R. 210. We are firmly of the opinion that – – the exception (established in the case of Rolin v. Steward) should not be limited to “traders” but should extend to persons who are “in business” in the sense that they are engaged in a pursuit upon lines sufficiently commercial to bring them within the expression “business”. We think that some weighty authority also exists for this view – – and we refer to the view of Lord Chorley as expressed in his Law of Banking (1974) 6th Ed. -where it is stated –
“Damage to reputation follows as a matter of course, when the customer is in business, unless of course, it can be shown that owing to bankruptcy or some other reason the customer’s credit is of no value. In the case of other persons, however, the loss to reputation may be problematical – – It is that, except in the case of a customer in business, actual damage must be proved before it can be recovered and this view was followed in Gibbons v. Westminster Bank Ltd. There are, however, other classes in the community such as military and naval officers, and professional men, to whom the consequences of a dishonoured cheque may be no less disastrous than to a trader and it seems unjust to limit the right to recover such damages to traders -“.
Here, Lord Chorley – a renowned authority on Banking and Commercial Law is even suggesting that the exception (i.e. Rolin’s case (Supra) be not limited to “persons in business”, but that it be extended to such classes of persons whose reputation in their various honourable callings and professions are just as likely to be damaged by the wrongful act of dishonour of their cheques as by slander in their respective way of trade, calling or profession. And dealing with the same topic, the learned author of the 13th Edition of Chalmers on Bills of Exchange observes:-
“- – The damages for a breach of such duty to honour a customer’s cheque will be merely nominal unless the customer alleges and proves special damage (a quite unlikely eventuality) or unless the customer is a trader; it may however be that a solicitor, an auctioneer, a stockbroker, an estate agent and possible any kind of commercial agent would be in the same way as a trader – -“.
On the same subject, the learned authors of Chitty on Contracts, 23rd Ed.; the Volume on Specific Contracts writes:-
“Apart from the rights that may arise in tort from the nature of the written answer; the wrongful dishonour of a cheque, in itself entitles the customer to damages for breach of contract. Where the customer is a tradesman, or probably, a professional man, it is assumed that the dishonour causes damage to his reputation and, he may be awarded substantial damage without proof of actual damage to his reputation. Where the customer is not a tradesman or professional man he is, in the absence of proof of actual damage, entitled to nominal damages only.”
At the end of the day, the Supreme Court held in Balogun v. N.B.N (supra) that a Solicitor, although not a trader, is in business, and that a wrongful dishonour of a cheque drawn on his client’s account, is deemed to cause damage to his credit and business reputation, consequently, applying the principle of law confirmed in the case of Rolin v. Steward (1864) 1.4 CB 595, the Solicitor is, in such circumstances, entitled to substantial damages, although he neither pleaded nor proved actual damage. The decision of the Supreme Court in that case – Balogun v. N.B.N. (supra), provides answers to the questions raised by the Appellant, which is why I had set it out in detail. per. AMINA ADAMU AUGIE, J.C.A.

DAMAGES: DAMAGES AT LARGE; WHAT ARE DAMAGES AT LARGE

“Damages at large” is an award that there is no exact measurement for, such as pain and suffering – see USLegal.com where it is defined as follows-
“Damages at large are compensation for other than for material loss. The term refers to general damages consisting of non-economic loss and exemplary damages in appropriate cases. They may include, among others, elements for loss of reputation, injured feelings, bad or good conduct by either party, or punishment, and therefore no precise amount can be determined. The amounts of damages at large are based on a subjective determination made on a case-by-case basis, after taking all the facts and circumstances involved into account”. per. AMINA ADAMU AUGIE, J.C.A.

JUSTICES:

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

CITIBANK NIGERIA LIMITED – Appellant(s)

AND

GRATIS PROPERTIES LIMITED – Respondent(s)

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): The Respondent maintained a current account at the Allen Avenue Branch of the Appellant, Ikeja, Lagos. On 16/4/2003, it issued a cheque in favour of “Integrated Environmental Control and Safety System” for N12,000.00 that was returned to the beneficiary with the inscription “Account Closed”. Aggrieved by the Appellant’s action, which it believed had dented it’s credit and reputation, the Respondent instituted an action against the Appellant at the Lagos State High Court, wherein it claimed the following reliefs –
(a) A DECLARATION that the purported unilateral closure of the Plaintiff’s Account No. 0030949005 by the Defendant is unlawful and a breach of the Defendant’s duty to the Plaintiff.
(b) A DECLARATION that the inscription and publication of the words, “Account Closed” by the Defendant on the cheque dated 16/4/2003 and issued by the Plaintiff in favour of Integrated Environmental Control and Safety System, is defamatory of the Plaintiff.
(c) DAMAGES of the sum of N10 Million Naira for the defamation of the Plaintiff as a result of the Defendant’s said publication and failure and/or refusal to honour the Plaintiff’s said cheque referred to above.
(d) INTEREST at the rate of 7% per annum on the Judgment debt until the entire Judgment debt is liquidated.

In response, the Appellant filed a Statement of Defence and Counter-Claim, wherein it counter-claimed against the Respondent for the following –
a. A DECLARATION that the Plaintiff is bound to return to the Defendant with effect from 21/3/2003 all unused cheque leaves issued by the Defendant in its possession.
b. An ORDER that the Plaintiff do forthwith cause to be returned to the Defendant all unused cheque books, leaves and other materials relating to the extinguished Account No. 0030949005 in its possession.

The Respondent filed a – Reply to the Statement of Defence and Defence to the Counter-Claim, wherein it denied any allegation of indebtedness to the Appellant and insisted that it had sufficient credit to satisfy the said cheque.

At the trial that ensued, the Respondent called its Chief Executive, Otunba Simi Fasehun, as PW1. He tendered the said cheque as Exhibit P1, and testified that the Respondent was embarrassed as a result of the failure of the Appellant to honour the cheque since it had just deposited the sum of N220,000.00 into the said Account prior to issuing Exhibit P1. He denied receiving any letter from the Appellant informing him that the said Account will be closed prior to its dishonouring Exhibit P1. The Respondent also called the Managing Director of the said beneficiary, Mr. Kehinde Awosika, an Environmental Consultant, who testified as PW2, and he was of the view that the inscription on Exhibit P1 meant insufficient funds in the Account.

The Appellant called only one witness as DW1, Mrs. Doyin Adegbayi, who worked in the Bank’s Investment Services Group, and she testified that on 21/2/2003, the Appellant had sent a 1-month notice to the Respondent advising that the Account be closed at a further date; and that the letter admitted as Exhibit D3, was sent to the Respondent by registered post, and the date for closure on Exhibit D3 was 21/3/2003. She further stated that the said Exhibit P1 was presented on 16/4/2003, however, the Bank did not process the transaction because the Respondent’s Account was closed, and Exhibit P1 was returned for the reason that the Account was closed.

Thereafter, learned counsel filed and exchanged Written Addresses, and in his Judgment delivered on 1/7/2004, learned trial Judge, Kasali, J., was of the view that Issues to be determined in the case were as follows –
(1) Whether or not the Defendant proved the receipt of Exhibit D3 by the Claimant.
(2) Whether Claimant is entitled to the relief sought if Exhibit D3 was not received by it.
(3) Whether in the circumstances of this case, the Defendant is entitled to its Counter-Claim.

After reviewing the evidence and addresses of counsel, it held as follows –
“DW1 testified to the effect that Exhibit D3 was dispatched to the Claimant by registered post. She tendered the receipt of letters sent by registered payment, bulk post venture by the Defendant through NIPOST as Exhibit D4. Exhibit D4, is a bulk post venture Nigeria Postal Services; there is nothing on the face of Exhibit D4 that indicated that any mail was sent to the Claimant. Exhibit D4 is a document that shows the analysis of documents sent, it shows the weight, quality, rate and description of job and amount paid. The attachment on Exhibit D4 also stated the bulk mailing arrangement with NIPOST. Nothing on the face of the attachment is evidencing dispatch of Exhibit D3 to the Claimant. I disagree with the contention of the learned counsel for the Defendant that the delivery of the notice i.e. Exhibit D3 was not controverted under cross-examination. It is my view that the Claimant both in his evidence in Chief and under cross-examination joined issue with the Defendant on the receipt of Exhibit D3. It is true that PW1 testified that letters were received at their 99, Opebi Road, Ikeja address from time to time, but denied receiving Exhibit D3. – – – I am of the view that Exhibit D4 cannot be equated with evidence of dispatch by registered post. There must either be acknowledgment by the Claimant on Exhibit D3, or evidence of dispatch by registered post of Exhibit D3, that will convince the Court that Exhibit D3 was in truth and in fact received by the Claimant. He who assert must prove – the onus is on the Defendant to prove the receipt of Exhibit D3. Exhibit D4 is not a convincing documentary evidence to prove the receipt of Exhibit D3. It was held in NLEWEDI v. UDUMA (supra) that in the absence of a dispatch book indicating its receipts or evidence of having sent it by registered post, the probative value of such document will be worthless unless there are witnesses credible enough to testify that the Defendant was served with it. I hold the view that in the absence of – – the above, Exhibit D3 was not delivered to the Claimant and therefore the Claimant did not receive Exhibit D3. The Defendant has therefore failed to prove the receipt of Exhibit D3. On the 2nd issue, which is whether the claimant is entitled to the relief sought, I have earlier stated the reliefs sought by the claimant – – On the 1st relief, having established that Exhibit D3 – the letter notifying the Claimant of the Defendants intention to close its account was not received by the Claimant, it follows therefore that the Defendant’s unilateral closure of the Claimant account – – is unlawful and a breach of the Defendant’s duty to the Claimant”.

Dissatisfied with the decision of the lower Court, the Appellant appealed to this Court with an original Notice of Appeal containing only the omnibus Ground of Appeal that the said decision “is against the weight of evidence“. However, with the leave of this Court, it filed an Amended Notice of Appeal, which contains 4 Grounds of Appeal, and the following Issues were distilled there-from in the Appellant’s Brief settled by Adeniyi Adegbonmire, Esq. –
(1) Whether having regard to the evidence adduced by both the Appellant and the Respondent at the Court below, the Court below did properly evaluate the evidence in reaching a decision to sustain the Respondent’s case and dismiss that of the Appellant?
(ii) Whether the Court below was right to have awarded the sum of N1,500.000.00 only, in favour of the Respondent as compensation for damages, which it alleged it suffered, as a result of the inscription by the Appellant of the words “Account Closed” on the Respondent’s cheque dated 16/4/2003?

The Respondent agreed in its Brief prepared by Rotimi Aladesanmi, Esq. that the Issues that call for Determination are as distilled by the Appellant, and I will also adopt the Appellant’s issues in dealing with this Appeal.

On the issue of evaluation of evidence, the Appellant submitted that at no time during the trial at the lower Court did the Parties join issues on the question of whether it wrote or issued the said Exhibit D3 that reads –
“We have noticed the low level of activity in your account for sometime. It is our policy to review such accounts with a view to closing them. We have just completed a portfolio review exercise and your account is one of those slated for closure. We hereby give you notice that your account will be closed by 21/3/2003. Upon closure, you will be required to retain all unused cheque books in your possession and a manager’s cheque will be issued to you for any balance that may be due to you after charges, commissions and interest (if any) have been deducted. No further credit or debit will be accepted after that date.”

It argued that what was in contention was whether or not the Respondent received Exhibit D3, and it tendered Exhibit D4 as its evidence of dispatch and receipt of Exhibit D3 by the Respondent, who gave no evidence of non-receipt by it, save for PW1‘s evidence denying that he received Exhibit D3, which is not the same thing, as PW1 is a different entity from the Appellant.

It drew our attention to the well-known principle first laid down in Salomon v. Salomon [1897] A.C. 22 by Lord Macnaghten that a Company is a different person altogether from its subscribers, and further citing Kano State Oil And Allied Products Ltd. v. Kofa Trading Company Ltd. (1996) 3 NWLR (Pt. 436) 244 SC, it argued that although PW1 is its Chief Executive, he had no banker/customer relationship with it, and so, it had no obligation to give him the notice of closure, and it was not required to prove delivery of Exhibit D3 on PW1 personally to establish receipt by the Respondent; and that the lower Court’s finding is not based upon the evidence adduced, and it must be set aside, citing First Bank of Nigeria Plc v. Akparabong Community Bank Limited & Anor. [2006] 1 NWLR (Pt. 962) 438 at 481.

It submitted that the lower Court’s findings are self-contradictory as Exhibit D4 shows that its letters to its customers were delivered through NIPOST and received/sent by registered post; that the 3rd entry in it has the Respondent’s name, the address to which it was/is to be delivered, and the “Tick” sign that signifies correctness of the information, which were never challenged, and that all that is required of it by Sections 137 and 139 of the Evidence Act, is proof that it was delivered to the post office, and it did not need to show it was actually received or that the post office carried out its duty of dispatching it, citing Nlewedim v. Uduma [1995] 6 NWLR (Pt. 402) 383, Daily Times Plc. v. Amaizu [1999] 12 NWLR (Pt. 630) 242; and that –
“The lower Court gave no reason why Exhibit D4 could “not be equated with evidence of dispatch by registered post”. This finding becomes more curious both by reason of the contents of Exhibit D4 which show clearly the evidence of dispatch by registered post, and earlier finding of the lower Court that Exhibit D shows analysis of all the mails sent by registered post by [it] of which Exhibit D3 was one. This finding of the lower Court is definitely against the weight of evidence adduced at trial. The Respondent clearly gave no evidence of non-receipt of Exhibit D3 by it. Exhibit D4 clearly shows the delivery of Exhibit D3 to the Post Office and that same was dispatched by registered post. – – Exhibit D4, also indicates receipt by the Post Office of Exhibit D3 and the amount paid by [it] for the services of NIPOST. All of these were never controverted by the Respondent, but curiously the lower Court still found that the receipt of Exhibit D3 was not established by [it]”.

Furthermore, that this is a proper case where we must interfere with the said findings, citing Garuba v. Yahaya [2007] 3 NWLR (Pt. 1021) 390 SC; that the lower Court misdirected itself, reached the wrong inferences, and failed to properly consider evidence before it, that the improper evaluation of evidence resulted in reaching a decision that the words “Account closed” on Exhibit D3 were defamatory of the Respondent, but if it had found that it discharged the burden of proof upon it to establish receipt of Exhibit D3 by the Respondent, it would not have reached the decision that the closure of the said Account was wrong, neither would it have reached the decision it did that the words “Account Closed” were defamatory of the Respondent; that its findings are also afflicted by the fact that inferences it made offend against Section 149(c) of the Evidence Act that allows it to presume the existence of certain facts, including the common course of business, which is that once mails are delivered to the Post Office, the presumption is that they were delivered to the addressee; and that in the absence of credible evidence from the Respondent, it cannot be said to have failed to discharge the burden of proof placed upon it with regard to its receipt of Exhibit D3. We were urged to disturb the findings of fact made by the lower Court, and hold that it discharged the burden of proof placed upon it by law regarding receipt of Exhibit D3 by the Respondent; and that it was within its rights to close its Account, and mark Exhibit P1 with the words “Account Closed”.

The Respondent, however, contends that the lower Court is right as a proper scrutiny of Exhibit D4 shows that it is merely a list of names with addresses and some serial numbers. It submitted that there is no way any one would look at Exhibit D4, and conclude that it proved the delivery of anything, let alone Exhibit D3 to its office; and that this Court is in as much a good position as the lower Court to evaluate the accepted evidence before the trial Court, citing Nwaezena v. Nwaiyeke [1990] 3 NWLR (Pt. 137) 230.

It argued that a company, which receives a document, would have a stamp of receipt or staff that would sign for it, and failure to produce same, evidences that nothing was so delivered to it; that such inferences are such as a reasonable person would draw, having regard to the circumstances, citing Agbanelo v. Union Bank [2000] 23 WRN 1; that oblivious of any said closure or notice, it had paid in a cheque of N220,000.00 into its Account, which was supposed to have been closed, and the Appellant received same, and gave it value as if all was normal; that by its conduct, if there was any such closure of its Account, the Appellant had waived same, and resumed banking relationship with it, citing Ariori v. Elemo [2001] 36 WRN 94, Jadcom Ltd. v. Oguns Electricals [2004] 3 NWLR (Pt. 859) 153; and that assuming that it is deemed to have had notice of the closure of its account, which it denied, the act of receiving payment after the purported closure, amounts to a waiver by which the said notice becomes spent, and for there to be a closure thereafter, a fresh notice must be given by the Appellant.

As for Exhibit D4, it submitted that the accepted norm and practice is that where a document is sent by registered post, it is only a postal slip that is sent to the addressee, by which such an addressee would be notified that there is an item to be collected at the issuing post office of the slip, and the posted item can only be collected by a person, who can identify himself as the addressee, or as having the authority to collect the said posted item. It urged us to take judicial notice of this process at the General Post Office, and further submitted that judicial notice founded on common knowledge, experience, and memory as a member of society can be taken by a Judge, citing Osafile v. Odi [No. 1] [1996] 3 NWLR (Pt. 137) 130 at 160; and that the only logical inference that can be drawn again is that it never received Exhibit D3 by registered post, which explains why the Appellant could not produce any document acknowledging the receipt by anyone in its office.

It further argued that Exhibit D4 on which the Appellant strenuously relies as proof of dispatch by registered post, emanated from the Appellant and not from NIPOST; that curiously, there was no document from NIPOST or any witness from NIPOST, and all that was before the trial Court was the ipsi dixit of DW1, a staff of the Appellant who merely tendered Exhibit D4 that was prepared by the Appellant but with stamps of the post office on it.

As regards the Appellant’s argument on being separate from its PW1, it submitted that PW1 is its Chief Executive, and Exhibit D1, which is its account opening document, is signed by PW1 as the sole signatory to same, and that could explain his ‘layman’ language using the 1st person singular; that the Managing Director is the directing mind and will of the company – its alter-ego, citing Trenco [Nig.] Ltd. v. African Real Estate Co. Ltd. [1978] 1 LRN 146; that PW1 was definitely referring to his company when he was testifying as if talking about himself personally; and that PW1 was in fact interchanging the 1st person with the 2nd and 3rd person, as follows –
“Plaintiff is located at 99, Opebi Road, Ikeja. Defendant’s branch where I maintain account is on Allen Avenue, Ikeja, just down the road from us – – I want this Court to reinstate my account so that I can have access to my account – – – I cannot send my cheque back to the Defendant because I have money in my account”.

He further argued that it is easily observed that all the evidence by PW1 related to it, and there was no personal testimony, but the testimony of its directing mind and will – its alter-ego; that the Appellant is erroneously contending that PW1‘s failure to specifically testify that it did not receive Exhibit D3 is evidence that the fact is not in issue, notwithstanding the fact that the pleadings have put this fact in issue by its denial in its Reply to the Statement of Defence and Defence to Counter-Claim; that it is Appellant’s duty to call evidence to support its pleadings since there is no admission of the matters it alleged, citing Buraimoh v. Esa [1990] 2 NWLR (Pt. 133) 406; and that there is, therefore, no basis to disturb the lower Court’s findings.

Now, the issue here is whether the Respondent received Exhibit D3 – a Notice sent to it by the Appellant advising that it’s Account with the Bank would be closed by 21/3/2003. This Court dealt with a similar issue in an appeal filed by this same Appellant – Citibank v. Mr. Martins Ikediashi (2014) LPELR-22447 (CA), where it argued that the same kind of Notice was sent to the Respondent by a letter that was dispatched by registered post, which was claimed in the Post Office by one Stanley, U.K. on the authority of the Respondent. But the Respondent countered that it never received any Notice from the Appellant before his Account was closed, and that he did not authorize and has nobody called Stanley, therefore, its act in endorsing “Account closed” on the cheque is a breach of contract and also libellous.
This Court in its judgment delivered by Oseji, JCA, on 7/2/2014, held thus-
“- – The clauses [7 & 8] in the agreement [Exhibit C] are quite clear and unambiguous in my assessment and have no need for any other meaning being read into them – – Clause 7 confers on the Appellant the right to close the Respondent’s account, whether it is in debit or credit, provided the Appellant gives the Respondent at least seven days’ notice before such closure. Clause 8, which is more of a general provision, provides for any notice or letter addressed to the Respondent by the Appellant and sent through the post to any address supplied by the Respondent shall be considered as delivered to and received by him at the time it would be delivered in the ordinary course of post. This – – means that any notice or letter sent through the post to the Respondent shall be deemed to have been delivered to him, in the case of ordinary postage upon being handed to him but where he has a mailbox, upon it being delivered therein. But where the means is by registered post, then upon such letter being signed for and collected from the postal officials in whose custody such letter or notice remains until it is so collected after identification. This is given the fact that such registered letter or items cannot be taken to have been delivered to or received by the addressee until it is retrieved or collected from the custody of the postal officials, who according to DW3, have such unclaimed letters or items destroyed after a given period in the absence of a recipient. In the circumstance, an addressee of a letter or notice cannot be taken to have received such letter or notice sent by Registered Post unless and until he signs for and collects it from the officials of the Post Office. This is in contrast to an unregistered letter, which is directly delivered to his Private Mail Bag or a private letter box”.

In this case, the situation is even more clear-cut because there is nowhere in its pleadings or evidence adduced at trial where the Appellant said that the Respondent actually signed for and collected Exhibit D3 from NIPOST.
It stated in paragraph 6 of its Statement of Defence and Counter Claim that –
“In exercise of the powers conferred upon the Defendant by the document styled GENERAL ACCOUNT CONDITIONS, by which the Plaintiff had agreed to be bound as aforesaid, the Defendant by means of a letter dated 21/2/2003, gave the Plaintiff notice of its intention to close the Plaintiff’s Account with effect from 21/3/2003. The said letter was sent to the Plaintiff by means of registered mail. The Defendant shall at the trial of this action rely on the said letter, together with proof of receipt by the Post Office, and the plaintiff is hereby given NOTICE TO PRODUCE the original – -“.

In other words, it averred that it shall at the trial provide “proof of receipt” not by the Respondent but “proof of receipt by the Post Office”. At the trial, the Record shows that DW1 sought to tender a copy of an acknowledgment from NIPOST as proof that it was delivered to the Respondent’s address, however, its counsel objected to it, and the lower Court ruled as follows –
“The documents sought to be tendered is a booklet from the Defendant that shows list of registered Postal Packets from the Defendant to various places, the ground of objection was that the evidence by the witness was to the fact that there was an acknowledgment receipt of the letter at the Plaintiff’s address, but what the witness sought to tender is different; it is only showing that the letter is taken to the Post Office. The submission by the Defendant counsel was to the fact that the document sought to be tendered shows that it was received at the Plaintiff’s address. I have taken a critical look at the documents sought to be tendered, it is a booklet that contains list of registered postal packets from the Defendant, and it has on the list under the name column – The M.D. of Plaintiff Company, address as 99, Opebi Road, Ikeja, there is nothing on that page to indicate that the letter was received at the Plaintiff’s address as stated by the witness. No acknowledgment of receipt of this document. It is my view that the document sought to be tendered is at variance with the evidence of the witness, I therefore hold that this document is not what the witness based her evidence on. In the result, the document sought to be tendered is rejected – -“.

The Appellant’s counsel then sought to tender “a copy of the receipt sent evidencing that payment was made at the Post Office”, and the Respondent’s counsel objected again to the admission of the said document in evidence.

The Appellant’s counsel, however, explained that the Appellant takes letters in bulk to NIPOST, and this time, the lower Court ruled as follows –
“The document sought to be tendered is a bulk post venture from Nigeria Postal Service to the Defendant bank, the ground of objection was that the document sought to be tendered is irrelevant as it only state money was paid, the submission of the Defendant counsel was that Defendant bank delivered letters in bulk to NIPOST and it is impossible to have an individual letter evidencing receipt. I have taken a look at the document sought to be tendered, there is nowhere in the document that indicates that letter was delivered to the Plaintiff Company, in view of the fact that the issue of notice is in controversy. I will be admitting this document as it is relevant but I will be mindful of the weight to be attached to this document in view of the reason earlier given. – – Bulk post venture from NIPOST – – admitted and marked as Exhibit D4”.

As we can see, the lower Court was vehement that none of the documents – one rejected and marked Exhibit R1, and another admitted as Exhibit D4, contained any acknowledgment that the Respondent received Exhibit D3. So, as far as documentary evidence is concerned, Exhibit D3 was delivered to NIPOST but is that sufficient to impute its delivery to the Respondent?

The Appellant mentioned the presumption of fact – “that the course of business has been followed in certain cases” [Section 149[c] Evidence Act]; the Respondent urged us to take judicial notice of the “accepted norm and practice” at NIPOST; and this Court stated in Citibank v. Ikediashi (supra) that the addressee of a letter sent by registered post cannot be said to have received the letter unless and until he signs for and collects it from NIPOST.

PW1 insisted that the Respondent never received Exhibit D3, and so, had no idea that its Account had been closed. The Appellant says we should not take the word of PW1 for it as it had no banking relationship with him, and was under no obligation to give PW1 the notice of closure personally. The Appellant’s contention is, obviously, an attempt to obfuscate matters. The Respondent is a limited liability company with its distinct personality, but it has no legs and no hands, and some human being with legs and hands had to have gone to NIPOST to sign for and collect Exhibit D3, on its behalf.

Yes, Exhibit D3 got to NIPOST, but there is nothing to show that PW1 or any staff of the Respondent had signed for and collected it from NIPOST. They are two different things; the mere fact that Exhibit D3 got to NIPOST, cannot be equated with proof that the Respondent did receive Exhibit D3. In the circumstances, the lower Court was right to reason as follows –
“Exhibit D4 cannot be equated with evidence of dispatch by registered post. There must either be acknowledgment by the [Respondent] on Exhibit D3, or evidence of dispatch by registered post of Exhibit D3, that will convince the Court that Exhibit D3 was in truth and in fact received by the [Respondent]. He who assert must prove – the onus is on the [Appellant] to prove the receipt of Exhibit D3. Exhibit D4 is not a convincing documentary evidence to prove the receipt of Exhibit D3. – – Exhibit D3 was not delivered to the [Respondent] and therefore the [Respondent] did not receive Exhibit D3. The [Appellant] has, therefore, failed to prove the receipt of Exhibit D3”.

I agree entirely; the Appellant provided “proof of receipt by the Post Office”, but failed to provide proof of the receipt of Exhibit D3 by the Respondent, and it would be taken that the Respondent was not aware that its Account had been closed, which inevitably led to the lower Court’s conclusion that –
“The [Appellant]’s unilateral closure of [Respondent]’s account is unlawful and a breach of [Appellant]’s duty to the [Respondent]”.

It is settled that a Bank has a duty to honour its customer’s cheques, and as long as the customer has sufficient funds to cover the amount on a cheque, the refusal to honour the cheque will amount to a breach of contract – see Citibank v. Ikediashi (supra), Balogun v. National Bank (1978) 3 SC 11, Osawaye v. National Bank (1974) NCLR 474 and Allied Bank of Nig. Ltd. v. Akubueze (1997) LPELR-429 (SC) where the Supreme Court observed –
“The first basic point that must be made is that a bank is bound to honour a cheque issued by its customer if the customer has enough funds to satisfy the amount payable on the cheque in respect of the relevant account. Refusal to honour the cheque will amount to a breach of contract which would render the banker liable in damages. So too, when the banker credits the current account of its customer with some money, the banker becomes a debtor to the customer in that sum – – Conversely, when a banker debits the current account of its customer with a certain sum, the customer becomes a debtor to the bank in that sum. Whichever party is the creditor is entitled to sue the other if demand for payment was made but not honoured”. [Per Iguh, JSC]

As regards the situation in that case, Uwaifo, JSC, went on to say as follows-
“The relationship of banker and customer depends basically on the ordinary principles of contract, and it could, at least in theory, be brought to an end by mutual agreement, by notice given by the customer or by the banker, by the death of the customer, by the mental disorder of the customer, and by bankruptcy or winding up of either party – – In the present case, it was terminated by the notice given by the 2nd Appellant (a customer). Therefore, as at the date (8/8/1984) when the Appellant’s cheque in question reached the Respondents, the relationship of banker and customer had come to an end and the Respondents were justified in not paying the said cheque. – – The Respondents owed the Appellants no further obligation, and had no cause, to refrain from endorsing the said cheque the way they did, namely, “Drawer’s attention required”, that was one way they could secure the Appellants’ attention and if need be, warn them to issue no more cheques on that closed account because they would not be honoured. Of course, the Respondents might well have endorsed the cheque “Account Closed” or “No Account” to finally bring it home to the Appellants that they cannot make any unwarranted use of that account.”

In this case, it was the bank that decided to close the Respondent’s account, because it “noticed the low level of activity in [the] account for some time”, which is what it stated in Exhibit D3 that the Respondent never received, and even if the Respondent had received Exhibit D3, the fact still remains that the Respondent paid in a cheque for N220,000.00 into the Account on 2/4/2003, after the closure date of 21/3/2003, indicated on Exhibit D3.

The Appellant did not deny that the Respondent had paid in that sum, which is more than sufficient to cover the cheque for N12,000.00, it issued to Integrated Environmental Control and Safety System on 16/4/2003, and which the Appellant dishonoured with the inscription “Account Closed”. Definitely, the Appellant cannot escape liability for its action in so doing. The position of the law is that a cause of action will accrue where the bank refuses to pay a customer’s cheque, when in fact he has to his credit at least an equivalent to that endorsed on the cheque he has issued on his account. The act of dishonouring a cheque in such circumstances, as I said earlier, constitutes a breach of contract for which the bank is liable in damages –
See Citibank v. Ikediashi (supra) and Balogun v. National Bank, (supra).

Issue 2 queries whether the lower Court was right to have awarded the sum of N1.5m to the Respondent as damages. The lower Court held –
“The law presumes damages and the Claimant need not prove special damages. Damages are awarded to compensate the injury suffered by the claimant. It is not to be awarded as punishment to the injury suffered by the Claimant. Damages are awarded to restore the Claimant’s reputation dented by the defamatory words; this must not be based on sentiments but on legal principle. It was stated by the Supreme Court in assessing damages for defamation, the Court should take the following into consideration:-
a. The conduct of the claimant.
b. The position and standing of the claimant in the Society.
c. The nature of the libel.
d. The mode and extent of the publication.
e. The absence or refusal of any retraction or apology and the whole conduct of the Defendant from time the libel was published down to the very moment of the judgment.
f. The decline in the purchasing power of the Naira.
The claimant – – is a limited liability company that carries on business as property owners, developers, managers, and real estate agents. PW1, the Chief Executive Officer of Claimant testified to the effect that he was greatly embarrassed by the defamatory words of the Defendant in view of the fact that he had money standing to its credit in its account. He has suffered severely in its reputation with its associates, clients and customers in business and goodwill. In considering the injury suffered by the Plaintiff, I am mindful of the fact that PW2 did not inform the Court of the odium this publication has on the business of the Claimant, he merely stated that by the words “account closed” it means the Claimant does not have sufficient funds in its account. I therefore cannot speculate on what effect this has on the business of the Claimant. PW1 – – testified to the effect that he was embarrassed by the publication, and did not inform the Court how the publication dent his ego and pride, even though he stated the effect on its reputation with his business associate and clients. I am taking into consideration that damages are awarded to compensate the claimant in money worth and I am therefore awarding the sum of N1,500,000.00 as damages to the Claimant”.

The Appellant’s contention is that having found the words “Account Closed” to reflect the true state of affairs as at 16/4/2003, the lower Court cannot proceed to hold that the same words were defamatory of the Respondent. It submitted that its finding on the unlawfulness or illegality of its closure of the account relates to an allegation regarding breach of the contract, and not to the tort of defamation in so far as it is true that it closed the account; that it was wrong to have found the words “Account Closed” defamatory of the Respondent and then proceed to award damages in relation thereto; that the Respondent sought damages for both defamation and its refusal to honour its cheque, and understood that the heads of claim are exclusive of one another, and that the breach of contract claim relates to what it termed “purported unilateral closure of the Plaintiff’s account No. 0030949005”, and not the inscription of the words “Account Closed” on Exhibit P1; that the lower Court did not award any damages for breach of contract, and the sum of N1.5m was awarded in relation to the defamation claim; and that having established that the Respondent could not be said to have been defamed by the words “Account Closed” when in fact the account was closed, the award of damages by it cannot stand, and is liable to be set-aside by this Court.

Arguing in the alternative, it submitted that even it is wrong above, the lower Court was still wrong to have awarded damages for defamation, and citing Akomolafe v. Nigerian Exchange Insurance Co. Ltd. [2000] 13 NWLR (Pt. 683) 181 & Ishaku v. Aina [2004] 11 NWLR (Pt. 883) 146 on the position of the law, it argued that the Respondent never led evidence to show that the words “Account Closed” on Exhibit P1 injured its character; that PW2 never said “Account Closed”, means insufficient funds as stated by the lower Court, neither did he say that his estimation of its character was lowered by the inscription of the words “Account Closed” on Exhibit P1; that the reason for not honouring Exhibit P1 is stated on it, and it is not for insufficiency of funds, so, the lower Court was wrong to make out a case for the Respondent other than the one it made, and proceed to find it liable in damages for defamatory publication without any evidence of injury caused to the Respondent or for reasons not relied on by the Respondent; and that appellate Courts frown upon such conduct, citing Osolu v. Osolu & Ors [2003] 11 NWLR (Pt. 832) 608 SC; that PW2 never gave any interpretation to the words “Account Closed” as stated by the lower Court in its Judgment; and that this aspect of its Judgment is further tainted by the principle that a Judgment of a trial Court must be based upon evidence adduced before it, and if not so based, such Judgment is liable to be set aside, citing First Bank v. Akparabong Community Bank [supra], Nigerian Bottling Co. v. Oboh [2000] 11 NWLR (Pt. 677) 212. It referred us to some findings of the lower Court and it is its contention that the award of damages should be set aside as it found as a fact that the Respondent never discharged the burden of proof upon it, which is that it must prove damage to its reputation, not as per its own opinion, but that of the person to whom the alleged offending words were published to, citing Hilary Tarons Ltd & Ors v. M/V Mahtola (Sister Vessel to M/V Kadrina) & Ors (2007) 14 NWLR (Pt. 1054) 210.

But the Respondent contends that the premise on which this issue is predicated is clearly flawed as it is based on the assumption that the award of N1.5m was simply for the inscription of the words, ‘Account closed’ alone, which is not a correct representation of the Judgment of the lower Court.

It submitted that the lower Court did a proper consideration of the issue of libel raised by this inscription, but this was a secondary foundation for award of damages, and the primary foundation is the breach of contract or “breach of duty to the Respondent”; that its finding of the breach of duty establishes breach of contract between the parties, and with its 2nd relief, precipitated the award of N1.5m as damages based on the fact that its 3rd relief is for N10m as general damages for these two infractions of breach of contract and defamation; that the Appellant misapprehended its findings, and its comment thereon was merely a hypothetical situation, wherein it assumed for the sake of argument, that if its case were true, the Appellant’s case was unsustainable; and that the lower Court’s assumptions were not findings of fact as being portrayed in the Appellant’s brief of argument.

It also referred us to its averment in its Statement of Claim that it is – “a limited liability company incorporated in Nigeria and carrying on business inter alia as property owners, developers, managers and real estate agents”, and the Appellant’s response that it was not in a position to admit or deny it, and submitted that where pleadings allege an inability to admit or deny an averment in the adverse party’s pleadings, this amounts to an admission, citing Lewis Peat v. Akhimien [1976] 1 All NLR 365; that the foregoing establishes it is in the property business, and a trader is entitled to recover substantial damages for the wrongful dishonour of his cheque without pleading and proving actual damages, citing Balogun v. National Bank (supra); and that in cases of breach of contract by a banker, the damages are at large, citing Salami v. Savannah Bank [1990] 1 NWLR (Pt. 130) 106.

Furthermore, that where a cheque has been wrongfully dishonoured, a customer is entitled to claim damages against his bank for breach of contract and/or for libel, citing F.A.T.B. Ltd. v. Partnership Inc. Co. Ltd. [2003] 18 NWLR (Pt. 851) 35; Gibbons v. Westminster Bank [1939] 2 KB 882; Allied Bank Nig. Ltd. v. Akabueze (supra) and UBA Ltd. v. Ademuyiwa [1999] 11 NWLR (Pt. 628) 570; that the lower Court was right to award the general damages for breach of contract, which it had earlier found to have been established, as well as for libel as these damages, especially for breach of contract, need no proof of any damage suffered, and are at large; that the closure of its account leading to the dishonour of its cheque is tantamount to a freezing of the account, and the Appellant went further to publish the ‘closure’ of this account to PW2; that any bank that freezes a customer’s account even without publishing to the whole world or to the press that the customer was fraudulent, can be sued for the tort of defamation, citing Royal Petroleum v. F.B.N. Ltd [1997] 6 NWLR (Pt. 510) 584; and that the state of the law is justification for the award of N1.5m general damages, but the Appellant confined its arguments to the narrow ground of placing the award of damages by the lower court on the defamatory aspect, contrary to the basis of the lower Court’s award on breach of contract and defamation.

It referred us to the position of the law regarding appellate Courts vis-a-vis award of damages by a trial Court, and citing the following cases – Soleh Boneh Overseas Nig. Ltd. v. Ayodele [1989] 1 NWLR (Pt. 99) 549; Okwejuminor v. Gbakeji [2008] 17 WRN 1; James v. Mid Motors [1978] 12 SC 31, Williams v. Daily Times [1990] 1 NWLR (Pt. 124) 1, John Joseph Abubakar [2001] 48 WRN 97, it further submitted as follows –
“- – In this case, the award was to a company accepted to be a property owner, developer, manager and real estate agent. Surely, even though the award for breach of a contract by a banker is at large, the award of the sum of N1.5m is definitely reasonable in the eyes of a reasonable man. It should also be considered that the award was also for the defamatory conduct of the Appellant”.

It further argued that the Appellant’s contention that it led no evidence to establish how the words, ‘Account closed’ defamed it and whatever damage it suffered thereby, is fallacious. It reiterated its earlier arguments and referred to the testimony of PW1 that he wrote Exhibit P3 dated 22/5/03, after he found out that its account had been closed, which reads as follows-
“We have noticed to our dismay and chagrin that the above-stated account has been rendered dysfunctional for no obvious reason. Our business has been paralyzed and untold damage done to our goodwill amongst our business associates due to your unilateral unwillingness to honour our cheques despite our favourable cash balance as at when such cheques were presented… Our lawyers have been advised to proceed to a Court of competent jurisdiction to seek defreezing of our account and to demand for compensatory and punitive damages on business opportunities if the account is not reinstated by 1st June 2003………”.

It argued that although it need not proffer any evidence on actual damage, it placed Exhibit P3 in evidence, and it was never controverted or assailed under cross-examination. We were urged to uphold the award of damages.

First off, the Appellant argued that the Respondent sought damages for defamation and its refusal to honour its cheque, and understood that both heads of claim are exclusive of one another, which is not at all correct, because, as the Supreme Court observed in Balogun’s Case, the customer may bring in the same action, a claim for damages for breach of contract, and a claim for damages for libel/defamation, and “sometimes in such cases, the two claims have been dealt with without any marked differentiation”.

The Appellant, as the Respondent rightly noted, appeared to have confined its arguments to the award of damages on the defamatory aspect, without looking at the full picture of what obtains in cases of this nature, which is that the Court did not need to differentiate one from the other.

The Appellant also quarrelled with the lower Court’s statement, as follows-
“In considering the injury suffered by the plaintiff, I am mindful of the fact that PW2 did not inform the Court of the odium this publication has on the business of the Claimant, he merely stated that by the words “account closed”, it means the Claimant does not have sufficient funds in its account. I therefore cannot speculate on what effect this has on the business of the Claimant”.

It argued that this portion of the lower Court’s Judgment is not supported by any evidence as no injury was said to have suffered by the Respondent, and becomes more worrisome when one looks at the underlined portion.

In its opinion, the words – “I therefore cannot speculate on what effect this has on the business of the Claimant”, which it designated as a “finding”, is that the lower court itself found that no evidence was led in this regard, but proceeded to award N1.5m to the Respondent, in the following words –
“I am taking into consideration that damages are awarded to compensate the Claimant in money worth and I am therefore awarding the sum of N1,500,000.00 as damages to the Claimant”.

From the standpoint of the law, the Appellant is standing on shaky ground; in the circumstances of this case, the Respondent does not have to prove actual damage or any injury suffered before it can be awarded damages – Balogun v. N.B.N. (supra), where Idigbe, JSC, also explained as follows –
“Direct and/or natural damage arising from a breach of contract by a banker to honour the cheque of his customer apart, there is, however, also the serious likelihood of considerable danger to the reputation of a customer and generally to his business; (if he – the customer – is engaged in business). People generally, whether in business or not in business, do not deal with a person, whose cheques are not paid, although it is conceded that instances of disinclination to deal with such a person more readily abound in the field of business. As it is always extremely difficult to have an accurate estimate of the extent of damage under this “head”, it has, therefore, been laid down by a long line of cases beginning with – Marzetti v. Williams (1830) 1 B & Ad 415 that damages in such cases are at “large”, which is to say that – – a jury may within reason make an award of any sum as they consider the circumstances of the breach of contract or dishonour of cheque warrant although there has been no proof of any actual loss (i.e. special damage) to the customer”.

In this case, I have looked at the portion of the Judgment complained about, and it is clear that the lower Court was merely considering the quantum of damages to award in the peculiar circumstances of the case before it.

The Respondent claimed N10m damages, and in assessing damages, the lower Court noted that it is “a limited liability company that carries on business as property owners, developers, managers, and real estate agents”. The lower Court went on to say that “in considering the injury [it] suffered” it was “not unmindful of the fact that PW2 did not inform the Court of the odium this publication has on the business of the [Respondent]”, so it “cannot speculate on what effect this has on the business of the [Respondent]”, and concluded with – “I am, therefore, awarding the sum of N1.5m as damages”.

From all indications, it was merely taking into account factors to explain why it would award the Respondent N1.5m and not the N10m it prayed for.

The wrongful dishonour of a cheque in itself entitles the customer to damages for the breach of contract, and where he is a person in business, it is assumed that the dishonour has also caused damage to his reputation. The Respondent did not need to prove actual damage to its reputation, and the Appellant’s contention to the contrary is a misapprehension of the law.

I see no reason at all to tamper with the decision of the lower Court, and the Respondent seems satisfied with the sum awarded because it said –
“The award was to a company accepted to be a property owner, developer, manager and real estate agent. Surely, even though the award for breach of contract by a banker is at large, the award of the sum of N1.5m is definitely reasonable in the eyes of a reasonable man”.

In the final analysis, this Issue is also resolved in favour of the Respondent, and the end result is that this appeal lacks merit. It fails, and is dismissed.

The Respondent is awarded costs of N30,000.

SIDI DAUDA BAGE, J.C.A.: In the light of the foregoing postulations, and the far-reaching reasoning and conclusions reached in the leading judgment just delivered by learned brother, HON. JUSTICE AMINA A. AUGIE, JCA. I agree with the reasoning and conclusion reached therein and have nothing extra to add.

I am of the paramount view that the instant appeal is lacking in merit. Hence, it fails and is hereby dismissed by me.

In the whole, the Suit is sent back for the continuation of trial, and the Respondent is awarded costs assessed at N30,000.00.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in advance the exhaustive judgment prepared by my learned brother, Amina Adamu Augie, J.C.A., with which I agree in toto with nothing extra to add.

Appearances

C. Ikwuazom, Esq., with H. AbdulKareem, Esq. and Mrs. O. Ogunrinde For Appellant

AND

R. O. Aladesanmi, Esq., with G. Uwaifo, Esq. and Miss G. A. Okewole For Respondent