ACCESS BANK PLC v. MR. ETHEL O. UGWUH (2013)

ACCESS BANK PLC v. MR. ETHEL O. UGWUH

(2013)LCN/6129(CA)

In The Court of Appeal of Nigeria

On Friday, the 26th day of April, 2013

CA/K/290/2010

RATIO

LIBEL: WHAT MUST BE PROVED TO SUSTAIN AN ACTION IN LIBEL

To sustain an action for libel, a claimant must plead and prove (i) that the publication was in writing, (ii) that the publication was false, (iii) that the false publication was made to a person apart from the claimant and the defendant, (iv) that the publication referred to the claimant and was defamatory of the claimant, and (v) that the publication was made by the defendant – Alawiye v. Ogunsanya (2004) 4 NWLR (Pt. 864) 486, Ilobachie v. Ilobachie (2005) 13 NWLR (Pt. 934) 695, Asheik v. Media Trust Nigeria Ltd. (2010) 15 NWLR (Pt. 1215) 114 and Inland Bank (Nig) Plc v. Fishing & Shrimping Co. Ltd. (2010) 15 NWLR (Pt. 1216) 395.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

LIBEL: A PARTY WHO ALLEGED THAT A PARTICULAR WRITING IS LIBELOUS MUST REPRODUCE THE WHOLE WRITING OR THE PARTICULAR PORTION COMPLAINED OF VERBATIM

A party who alleges that a particular writing is libelous of him must reproduce the whole writing or the particular portion the party complains of verbatim. No matter how long the writing is, it must be reproduced by the party, otherwise the claim in libel must fail – Okafor v. Ikeanyi (1979) 3 – 4 SC 99, Guardian Newspapers Ltd. v. Ajeh (2011) 10 NWLR (Pt.1256) 574.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

EVIDENCE: EFFECT OF FAILURE TO DISCHARGE ONUS OF PROOF ON THE PART OF THE PLAINTIFF
The Courts have stated over the years that where a plaintiff fails to discharge the onus of proof upon him at the close of pleadings, a defendant is not obliged to adduce any evidence in rebuttal – Woluchem v. Gudi (1981) 5 SC 291, Olowu v. Olowu (1985) 3 NWLR (Pt.13) 372, Orlu v. Gogo-Abite (2010) 8 NWLR (Pt.1196) 307, Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412, Obi v. Onyemelukwe (2011) 1 NWLR (Pt.1228) 400, Eyo v. Onuoha (2011) 11 NWLR (Pt. 1257) 1. In other words, in a civil suit, the person who asserts has the primary burden of proving the assertion. The failure of the defendant to prove or his refusal to testify cannot alleviate the primary burden on the claimant – Dim v. Enemuo (2009) 10 NWLR (Pt.1149) 353, Iroagbara v. Ufomadu (2009) 11 NWLR (Pt. 1153) 587, Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265, Phillips v. Eba Odan Industrial & Commercial Co. Ltd. (2013) 1 NWLR (Pt. 1336) 618. This is explained by the maxim “ei qui affirmat non ei qui negat incumbit probation” which means the burden of proof lies on one who alleges, and not on him who denies Arum v. Nwobodo (2004) 9 NWLR (Pt.878) 411, Olaleye v. Trustees of ECWA (2011) 2 NWLR (Pt. 1230) 1.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

DAMAGES: DIFFERENT TYPES OF DAMAGES

Damages is dichotomized, categorized and sub-divided into special and general damages with the basic concept being to compensate the injured party for the injury sustained and nothing more, such as will simply make good or replace the loss caused by the wrong or injury. The rationale behind the compensatory theory for award of damages is put in the maxim restitution in integrum, that is, to restore the injured party to the position he or she was in prior to the injury. It is that sum of money which will put the party who has been injured or who has suffered damage in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

APPEAL: WHETHER THE APPEAL COURT WILL INTERFERE IN THE AWARD OF DAMAGES BY A TRIAL COURT

REPLY: PURPOSE OF A REPLY ADDRESS
It is elementary that the purpose of a reply address is to respond to new points raised in the written address of the other party and it is to be limited to that purpose only and not used to raise and canvass new issues – Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) 208, Federal Republic of Nigeria v. Iweka (2013) 3 NWLR (Pt. 1341) 285, Kejawa v. State (2013) 3 NWLR (Pt. 1341) 380.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

RULES OF COURT: MUST BE PRIMA FAICE OBEYED AND FOLLOWED BY ALL PARTIES

Accordingly, Rules of Court must prima facie be obeyed and followed by all the parties before the court – Aromolaran v. Oladele (1990) 7 NWLR (Pt. 162) 359, Duke v. Akpabuyo Local Government (2005) 19 NWLR (Pt. 959) 130, Owners of the MV “Arabella” v. Nigeria Agricultural Insurance Corp (2008) 11 NWLR (pt 1097) 182, Agip (Nig) Ltd. v. Agip Petroli International & Ors. (2010) 5 NWLR (R 1187) 348, Oyegun v. Nzeribe (2010) 7 NWLR (Pt.1194) 577.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES:

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE ABIRU Justice of The Court of Appeal of Nigeria

Between

ACCESS BANK PLC. – Appellant(s)

AND

MR. ETHEL O. UGWUH – Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the leading Judgment): This is an appeal against the judgment of the High court of Kaduna state in suit No.KDH/KAD/399/2009 delivered by Honorable Justice J. Abiriyi (as he then was) on the 13th of July, 2010. By a writ of summons issued out of the High court of Kaduna State on the 4th of June, 2009, the Respondent, as plaintiff, commenced an action against the Appellant, as defendant, claiming for the sum of N20 Million as general damages.
The writ of summons was accompanied by a statement of claim dated the 3rd of February, 2009 as well as by a list of witnesses, written depositions of witnesses on oath, list of documents to be relied on at trial and copies of the documents. The Appellant responded by a statement of defence dated the 10th of August, 2009 and it was accompanied by written depositions of witnesses on oath and copies of the documents to be relied on at trial.
The case of the Respondent on the pleadings was that he was a businessman and a customer of the Appellant with Account No.0020115000001729 and that sometime in 2007, he purchased a car from one Mr. Adamu S. Adamu and for which he made a down payment, leaving a balance of N200,000.00 to be paid on or before the 16th of October, 2007 and failing which he was to pay a surcharge in a sum amounting to 10% of the purchase price of the car. It was his case that on the 16th of October, 2007, he issued a cheque in favour of the said Mr. Adamu S. Adamu in the sum of N200,000.00 and that as at that date he had sufficient funds in his account with the Respondent but that the Respondent refused to honor the cheque upon its presentation. It was his case that on the same 16th of October, 2007, the Appellant also refused to honor another cheque in the sum of N50,000.00 which he had earlier issued in favour of one Mr. Ikechukwu E. Uwaezuoke and this was despite the presence of sufficient funds in his account.
It was the case of the Respondent that he had a credit balance of N272,698.88k in his account as at 16th of October, 2007 and that the Respondent was wrong and negligent in refusing to honor his cheques and by reason of which he was brought to ridicule before the two individuals to whom he issued the cheques. The Respondent proceeded to state the particulars of the negligence. It was his case that as a result of the Appellant’s refusal to honor the cheques, he was made to pay a surcharge of N215,000.00 to Adamu S. Adamu as default fees and both recipients of the cheques have since then refused to accept cheques from him and they treat his business transactions with contempt. It was his case that the actions of the Appellant amounted to negligence, breach of contract and libel to and against him. It was his case that the publication of no credit made by the staff of the Appellant to the recipients of the cheques portrayed him as a person who issues cheques without credit capacity with a view to deceiving unsuspecting members of the public and that this made him lose credit value in his business community and he also suffered odium, ridicule, and embarrassment from his business associates.
In its case in response, the Appellant admitted that the Respondent was its customer and that it refused to honor the two cheques of the Respondent and it was its case that it did not dishonor the cheques by reason of insufficient funds in the account of the Respondent but that it did so because of the irregularities in the signatures of the Respondent on the cheques and because the recipients of the cheques were unable to present convincing proofs of their identity and also because of the contradictory instructions on identification written on the backs of the cheques by the Respondent. The Appellant denied all the particulars of negligence and it was its case that it acted professionally in its duty to protect the funds of the Respondent from getting into wrong hands and that its staff made efforts to contact the Respondent via the telephone number in its records but that the line was not functional. It was its case that it did not publish any statement of no credit to any person whatsoever and that it acted diligently and in the best interest of the Respondent and that it did not breach the banker/customer relationship with the Respondent.
The matter proceeded to trial and at the conclusion of which the lower court entered judgment in favour of the Respondent and awarded damages in the sum of N500,000,00 against the Appellant. The Appellant was dissatisfied with the judgment and it caused to be filed a notice of appeal dated the 15th of July, 2010 against it. The notice of appeal contained five grounds of appeal.
In compliance with the Rules of this Court, the Appellant filed a brief of arguments dated the 13th of November, 2012 and this was sequel to an order of this court made on the 30th of October, 2012 granting the Appellant leave to change its name from Intercontinental Bank Plc to Access Bank Plc. The Respondent filed a brief of arguments dated the 29th of November, 2012. At the hearing of the appeal on the 20th of March, 2013 counsel to the Appellant and the Counsel to the Respondent relied on and adopted their respective briefs of arguments.
In his brief of arguments, Counsel to the Appellant distilled three issues for determination from the five grounds of appeal and these were:
i. Whether the Respondent sufficiently discharged the burden of proof on him on the state of the pleadings and evidence thereon to entitle him to judgment.
ii. Whether the award of N500,000.00 damages to the Respondent by the trial court having found that the Respondent is not a business man is not excessive.
iii. Whether the striking out of the Appellant’s reply to the Respondent’s written address by the trial court is not in breach of the Appellant’s right to fair hearing and thereby occasioning a miscarriage of justice.
Counsel to the Respondent did not distill any issue for determination in his brief of arguments and though he did not expressly say that he was adopting the issues as formulated by the counsel to the Appellant, he presented arguments on the three issues. Counsel to the Respondent did not, however, argue the issues in the order in which they were presented by counsel to the Appellant; he re-numbered them and he treated the third issue as the first issue for determination and first and second issues as the second and third issues for determination. This Court will treat the three issues for determination together.
On the first issue for determination, Counsel to the Appellant referred to the provisions of section 131 of the Evidence Act, which states that the burden of proof of asserted facts was on the party asserting the existence of those facts and also to the cases of Okugbule v. Oyagbola (1990) 4 NWLR (Pt.147) 723 and Ike v. Ugboaji (1993) 6 NWLR (Pt.301) 539 and submitted that the onus of proof in this matter was on the Respondent. Counsel further referred to the case of Agharuka v. First Bank of Nigeria Plc. (2010) 3 NWLR 465 and stated that in discharging the onus, the Respondent was bound to rely on his case and not on the weakness of the Appellant’s case. Counsel traversed through the evidence led by the two witnesses of the Respondent and by the sole witness of the Appellant as well as the assessment of the credibility of the witnesses by the trial Court in its judgment and submitted that the Respondent did not lead credible evidence to sustain his case in the matter. Counsel referred to the failure of the Respondent and its witnesses to produce and tender at the trial the requested mode of identification, the National Identity Cards of the recipients of the cheques, and he submitted that this entitled the Court to invoke the provision of section 167 (d) of the Evidence Act on withholding evidence and to hold that the National Identity cards were not in existence at the time they were requested by the Appellant. Counsel referred to the case of Igbeke v. Emordi (2010) 11 NWLR (Pt. 1204) 1.
On the second issue for determination, counsel to the Appellant submitted that it is the law that a customer of a bank whose cheque is dishonoured without justification and who is unable to prove before the court by cogent evidence that he is involved in a trade or business is only entitled to nominal damages. Counsel referred to the judgment of the lower court and the findings made therein that the Respondent failed to prove that he was a businessman and submitted that the award of the sum of N500,000.00 as damages was grossly extravagant. Counsel stated that a Court should not act like Father Christmas and award damages based on sentiments and he submitted that the sum awarded was too high, unfair and unjust and he urged this Court to set same aside. Counsel referred to the case of Udoh v. Asuquo (2006) 9 NWLR (Pt. 9850) 299.
On the third issue for determination, Counsel stated that the action of the lower court in striking out the reply address of the Appellant was contradictory and he submitted that by striking out the reply address the lower court denied the Appellant the right of fair hearing as it prevented the lower Court from having access to the serious points of law and decided authorities contained therein in response to the new issue raised in the address of the Respondent. Counsel referred to the provisions of section 36(1) of the 1999 Constitution and the case of Ceekay Traders v. General Motors Co. Ltd. (1992) 2 NWLR (Pt. 22) 132 on the inalienability of the right of fair hearing. Counsel stated that this breach of fair hearing rendered the proceedings and the decision reached therein a nullity and they cannot be salvaged by the appellate Court and he referred to the cases of Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 23 and Ndukaba v. Kolomo (2005) 4 NWLR (Pt. 915) 411. Counsel urged the court declared the proceedings and the judgment of the lower court a nullity.
In his response arguments on the first issue for determination, counsel to the Respondent conceded that the Respondent had the initial onus of proof in the matter and that Respondent had the obligation to satisfy the court that the conditions which entitle him to the relief claimed have been proved. Counsel said that from the state of the pleadings, the Respondent has the onus to prove (i) that there was a banker/customer relationship between him and the Appellant; (ii) that there was enough funds in his account to meet the payments in respect of the two cheques; (iii) that in spite of the sufficient funds, the Appellant failed/neglected to honor the cheques; and (iv) that the Appellant was negligent and had breached the contract between them by not honoring the cheques. Counsel traversed through the evidence led by the Respondent and submitted that the Respondent proved these facts by cogent evidence. Counsel stated that the onus thus shifted to the Appellant to prove why the cheques were not honored because in civil cases the onus of proving particular facts rests on the party against whom judgment would be given if no evidence were produced in respect of those facts. Counsel referred to the case of Highgrade Maritime services Ltd. v. First Bank of Nigeria Plc (1991) 1 NWLR (pt. 167) 290. Counsel then went through the testimony of the defence witness and concluded that the witness did not lead any cogent or believable evidence to discharge the onus on the Appellant. Counsel urged this Court to resolve the first issue for determination in favour of the Respondent.
On the second issue for determination, counsel to the Respondent stated that the sum of N500,000.00 was awarded in favour of the Respondent as general damages for breach of contract and he submitted that general damages do not require the strictness of proof like special damages. Counsel referred to the case of Shell Petroleum Development Co Ltd. v. Tiebo VII (2005) 9 MJSC at 189 – 190. Counsel submitted that it is trite law that where two persons have entered into a contract which one of them has broken, the injured person is entitled to damages in respect of such breach of contract as may fairly and reasonably be considered as arising naturally from the breach of contract itself or such as may reasonably be supposed to have been in contemplation of both parties as a probable result of its breach at the time the contract was made. Counsel referred to the case of Prime Merchant Bank Ltd. v. Man Mountain Co. (2000) FWLR (Pt. 9) 1587. Counsel stated that the Respondent pleaded and led evidence of the injuries he suffered as a result of the failure of the Appellant to honor his two cheques and that the award of N500,000.00 as general damages was not excessive in the circumstances. Counsel submitted that the Appellant has not presented this court with any reason to interfere with the award of damages by the lower court. Counsel urged this court to resolve this issue in favour of the Respondent.
With respect to the third issue for determination, counsel stated that the reply address of the Respondent was filed outside the seven days allowed by the Rules of the High Court of Kaduna State and that the Counsel to the Respondent urged the court to strike same out on that ground. Counsel submitted that Rules of court must be complied with, respected and obeyed and he referred to a number of case law authorities on the point. Counsel stated further that what the Rules permit a party to file is a “reply on points of law” and not a re-argument of the case and that the reply address of the Appellant was an attempt to re-argue the case. Counsel submitted that the lower court was clearly within its powers when it struck out the reply address of the Appellant and that that action cannot by any stretch of imagination amount to a breach of the Appellant’s right to fair hearing. Counsel urged this Court to also resolve this issue in favour of the Respondent.
The starting point for the consideration of the issues for determination in this appeal must be the identification of the cause of action of the Respondent in this matter. The Respondent did not identify his cause of action in the writ of summons as his claim against the Appellant was simply stated to be for the sum of N20 Million as general damages; he did not say what the claim was predicated upon. In the statement of claim, however, the claim of the Respondent was more specific and it was for the sum of N20 Million as general damages for breach of contract and libel. It is settled law that a statement of claim supercedes a writ of summons – Lewis v. Obawole (2011) 7 NWLR (Pt. 1247) 572, Eya v. Olopade (2011) 11 NWLR (Pt. 1259) 505 and Onyero v. Nwadike (2011) 18 NWLR (Pt. 1279) 954. Thus, the causes of action of the Respondent in this matter were breach of contract and libel. The question that arises on the first issue for determination is whether the Respondent made out a case both in his pleadings and on the evidence led to sustain either or both of the causes of action.

In an action for a breach of contract, a claimant must plead and prove:
i. That there was in existence an enforceable contract between him and the defendant. There can be no breach of a non-existent contract and once it is determined that no enforceable contract exists between the parties or that what took place between the parties did not translate to a contract between them, the foundation of the relief claimed collapses with the absence of a cause of action Best (Nigeria) Ltd. v. Blackwood Hodge (Nig) Ltd. (2011) 5 NWLR (Pt.1239) 95 and Bilante International Ltd. v. Nigeria Deposit Insurance Corporation (2011) 15 NWLR (Pt. 1270) 407.
ii. That the defendant was in breach of the contract – Njikonye v. MTN Nigeria Communications Ltd. (2008) 9 NWLR (Pt. 1092) 339 and Babington-Ashaye v. E.M.A. General Enterprises (Nig) Ltd. (2011) 10 NWLR (Pt. 1256) 479.The case of the Respondent on the pleadings was that there existed a banker/customer relationship between him and the Appellant in that he operated an account with the Appellant and that on the 16th of October, 2007, he issued two cheques in favour of two persons in the sums of N200,000.00 and N50,000.00. It was his case that as at that date, he had funds in his account sufficient to cover the amounts on the two cheques but that the Appellant negligently refused to honour the two cheques and was thus in breach of the banker/customer relationship between them. The Appellant, in response, admitted that the Respondent was its customer and had an account upon which cheques could be issued and it also admitted that the Respondent did issue two cheques on the account on the 16th of October, 2007, and that the Respondent had sufficient funds in its account to cover the two cheques as at that date. The Respondent further admitted that it dishonoured the cheques but denied and contested that it acted negligently and it was its case that it acted diligently and professionally in furtherance of its duty to protect the funds of the Respondent.
Now, it is an aged fundamental principle of civil litigation that the pleadings of parties define and delimit the issues joined by parties in a suit and on which a court is called upon to adjudicate and resolve in order to come to a just and fair decision in the matter. This principle was firmly restated by the Court of Appeal in Awuse v. Odili (2005) 16 NWLR (Pt. 952) at page 504 E – F when the Court said that “the primary function of a pleading is to define and delimit with clarity and precision the real matter in controversy between the parties upon which they can prepare and present their respective cases” and “in addition, it also serves as the basis upon which the court will be called to adjudicate between them.” Therefore, it is of cardinal importance in civil litigations to bear in mind that when parties have in their pleadings agreed on some facts, there is no issue in dispute between them on such agreed matters. When a fact pleaded by the claimant and admitted by the defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted – Onobruchere & Anor. v. Esegine & Anor. (1986) 2 SC 385 at 397, Bunge v. Governor, Rivers State (2006) 12 NWLR (Pt 995) 573 at 599 – 600 B – A.From the pleadings of the parties in this matter, it was not in dispute that the Respondent was, at the times material to this suit, a customer of the Appellant with an account on which cheques could issue. It was not in dispute that on the Respondent issued two cheques in favour of two persons in the sums of N200,000.00 and N50,000.00. It was not in dispute that as at the date the cheques were issued, the Respondent had sufficient funds in his account to cover the amounts on the two cheques and it was not in dispute that the Appellant dishonoured the cheques. These facts were admitted by the Appellant and they are deemed established without need further proof – Kwentoh v. Kwentoh (2010) 5 NWLR (Pt. 1188) 543. Thus, it was established that there was indeed a banker/customer relationship between the Respondent and the Appellant. Now, it is settled that in law and the practice of banking, the relationship between a bank and its customer is contractual – Union Bank of Nigeria Plc v. Ajabule (2011) 18 NWLR (Pt. 1278) 152, Afribank Nig Plc v. Anuebunwa (2012) 4 NWLR (pt.1291) 560. It was thus not in dispute that there was a contract between the parties in this matter.

Now, the role of bankers and their predominant business is the receipt of monies on current account or deposit accounts and payment of cheques drawn as well as the collection of cheques paid in by customers. A bank has a duty under its contract with its customer to exercise reasonable care and skill in carrying out its part of its contract with its customers. The duty to exercise reasonable care and skill extends over the whole range of banking business within the contract with its customers – Standard Trust Bank Ltd. v. Anumnu (2008) 14 NWLR (Pt. 1106) 125, United Bank for Africa Plc v. Godm Shoes Industries (Nig) Plc (2011) 8 NWLR (Pt. 1250) 590, Afribank Nig Plc v. Anuebunwa supra.The onus on the Respondent in this matter was to prove that the Appellant acted in breach of the contract by refusing to honour the two cheques he issued. It was the case of the Respondent on the pleadings that the Appellant acted negligently in refusing to honour the cheques. The Respondent had the obligation to prove by credible evidence the negligent act of the Appellant referred to.
Now, negligence is the omission to do something, which a reasonable man guided upon those considerations that ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. It means lack of proper care and attention; careless behavior or conduct; a state of mind which is opposed to intention and the breach of a duty of care imposed by common law and statute resulting in damage to the complainant. Negligence is the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. It is also any conduct that falls below the legal standard established to protect others against unreasonable risk of harm – Universal Trust Bank of Nigeria Plc v. Ozoemena (2007) 3 NWLR (Pt.1022) 448, Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt.1079) 172 and Diamond Bank Plc v. Partnership Investment Co. Ltd. (2009) 18 NWLR (Pt. 1172) 67, Hamza v. Kure (2010) 10 NWLR (Pt.1203) 630.

Negligence is a question of fact and not law and so each case must be decided in the light of the facts pleaded and proved. A claimant who alleges negligence is required to state or give particulars of negligence alleged. It is not sufficient for a claimant to make a blanket allegation of negligence against a defendant without giving full particulars of the items of negligence relied on as well as the duty of care owed him by the defendant – Universal Trust Bank of Nigeria Plc v. Ozoemena supra, Abubakar v. Joseph (2008) 13 NWLR (Pt.1104) 307, Dare v. Fagbamila (2009) 14 NWLR (Pt. 1160) 177, Diamond Bank Plc v. Partnership Investment Co. Ltd. Supra, Federal Airports Authority of Nigeria v. Wamal Express Services (Nig) Ltd. (2011) I NWLR (Pt.1249) 219. A claimant must also lead credible and cogent evidence on the specific acts of negligence alleged – Ojo v. Gharoro (2006) 10 NWLR (Pt.987) 173, New Improved Manibanno Ventures Ltd. v. First Bank of Nigeria Plc (2009) 16 NWLR (Pt. 1167) 411, Aluminium Manufacturing Company Nigeria Ltd. v. Volkswagen of Nigeria Ltd. (2010) 7 NWLR (Pt. 1192) 97.The Respondent pleaded the particulars of negligence in paragraph 12 of the statement of claim and part of the particulars pleaded were that the staff of the Appellant told the persons to whom the cheques were issued that the cheques could not be honoured because there was no credit in the account and that the staff of the Appellant told him that they could not pay the cheques because of a transaction made at the Umuahia Branch of the Bank which they were yet to confirm, The Respondent called two witnesses in proof of the acts of negligence of the Appellant and the two cheques were tendered as Exhibits 2 and 4 at the trial. Speaking on the quality of the evidence led by the Respondent in proof of the alleged acts of negligence of the Appellant, the lower Court stated in the judgment thus:
“From the statement of claim and evidence of PW1 and PW2 the plaintiff claims that he issued the cheques Exhts. 4 and 2 to the PW2 and one Ikechukwu E. Nwaezuoke and they were returned unpaid on the ground that the plaintiff did not have funds in his account. The person to whom Exh. 2 was issued did not testify. So whatever PW1 and PW2 said in respect of Exh. 2 as to why it was returned unpaid is hearsay evidence and of no evidential value.
PW2 who was issued with Exh. 4 in his evidence in chief said that he was informed that payment would not be made to him because the account of the plaintiff was not in credit. But under cross-examination, the same witness said he did not know why the bank refused to pay him. In his evidence in chief, he had said also that when the plaintiff came, the bank insisted that there was no money and returned the cheque to the plaintiff. It is incredible that the PW2 who purportedly heard the Defendant’s agents twice stating that there was no money in the account and returning the cheques to the plaintiff would under cross-examination make a somersault and say he did not know why the bank refused to pay him. The same witness who claimed to have called the plaintiff on phone when the bank refused to pay him under cross-examination, was not sure whether it was the plaintiffs MTN number he called.
On this evidence I am unable to find that the cheques were returned because the Defendant said the plaintiff s account was not in credit. No credible evidence has been led in proof of the fact that the cheques were returned for that reason or that the plaintiff was called on phone by the PW2 and he went to the bank. As there is no evidence that the plaintiff was caned to the bank by PW2 and so did not go until the following day when he got the statement of account, he could not say why the cheques were returned unpaid.” (See pages 124 to 125 of the records)
These findings of the lower court were not challenged, contested or protested by the Respondent in this appeal. The net effect of these findings is that the Respondent failed to lead credible evidence to prove the particulars of negligence alleged against the Appellant. It is settled law that it is the duty of the party who asserts the facts of negligence to prove it and that failure to prove the particulars of negligence pleaded is fatal to the case of such a party – Imana v. Robinson (1979) 3 – 4 SC 1, Otaru and Sons Limited v. Idris (1999) 6 NWLR (Pt.606) 330, Ngilari v. Mothercat Ltd. (1999) 13 NWLR (Pt 636) 626, Abubakar v. Joseph supra and Onwunalu v. Uche (2010) 2 NWLR (Pt.1179) 582. With this failure, the Respondent failed to prove how the Appellant breached the contract between the parties. The Respondent did not thus make out a credible case on the pleadings and on the evidence led to sustain his cause of action in breach of contract.
The second cause of action adumbrated by the Respondent in the statement of claim was defamation, libel, Defamation’ generally, is any imputation which tends to lower a person in the estimation of right thinking men or cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business – Benue Printing and Publishing Corporation v. Alhaji Gwagwada (1989) 4 NWLR (Pt. 116) 439 and Okolie v. Marinho (2006) 15 NWLR (Pt. 1002) 316. The genre of defamation in issue in this case’ libel, is a statement reduced into writing, by one about the other, which statement has been published to a third party and has the effect or tendency of lowering the addressee in the eyes of right thinking members of the society generally. Particularly, the statement causes its victim to be regarded with ill-feelings, fear, ridicule or disdain – The Sketch Publishing Co. Ltd v. Alhaji Ajagbemokeferi (1989) 1 NWLR (Pt.100) 678 and NITEL v. Tugbiyele (2005) 3 NWLR (Pt. 912) 334.
To sustain an action for libel, a claimant must plead and prove (i) that the publication was in writing, (ii) that the publication was false, (iii) that the false publication was made to a person apart from the claimant and the defendant, (iv) that the publication referred to the claimant and was defamatory of the claimant, and (v) that the publication was made by the defendant – Alawiye v. Ogunsanya (2004) 4 NWLR (Pt. 864) 486, Ilobachie v. Ilobachie (2005) 13 NWLR (Pt. 934) 695, Asheik v. Media Trust Nigeria Ltd. (2010) 15 NWLR (Pt. 1215) 114 and Inland Bank (Nig) Plc v. Fishing & Shrimping Co. Ltd. (2010) 15 NWLR (Pt. 1216) 395. A party who alleges that a particular writing is libelous of him must reproduce the whole writing or the particular portion the party complains of verbatim. No matter how long the writing is, it must be reproduced by the party, otherwise the claim in libel must fail – Okafor v. Ikeanyi (1979) 3 – 4 SC 99, Guardian Newspapers Ltd. v. Ajeh (2011) 10 NWLR (Pt.1256) 574.The Respondent neither pleaded nor led evidence on the exact words alleged to have been used by the Appellant to defame him. The claim in libel must thus fail. The Respondent did not also make out a credible case to sustain his case in libel.
The Courts have stated over the years that where a plaintiff fails to discharge the onus of proof upon him at the close of pleadings, a defendant is not obliged to adduce any evidence in rebuttal – Woluchem v. Gudi (1981) 5 SC 291, Olowu v. Olowu (1985) 3 NWLR (Pt.13) 372, Orlu v. Gogo-Abite (2010) 8 NWLR (Pt.1196) 307, Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412, Obi v. Onyemelukwe (2011) 1 NWLR (Pt.1228) 400, Eyo v. Onuoha (2011) 11 NWLR (Pt. 1257) 1. In other words, in a civil suit, the person who asserts has the primary burden of proving the assertion. The failure of the defendant to prove or his refusal to testify cannot alleviate the primary burden on the claimant – Dim v. Enemuo (2009) 10 NWLR (Pt.1149) 353, Iroagbara v. Ufomadu (2009) 11 NWLR (Pt. 1153) 587, Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265, Phillips v. Eba Odan Industrial & Commercial Co. Ltd. (2013) 1 NWLR (Pt. 1336) 618. This is explained by the maxim “ei qui affirmat non ei qui negat incumbit probation” which means the burden of proof lies on one who alleges, and not on him who denies Arum v. Nwobodo (2004) 9 NWLR (Pt.878) 411, Olaleye v. Trustees of ECWA (2011) 2 NWLR (Pt. 1230) 1.

With the finding that the Respondent failed to lead credible evidence in support of his case in breach of contract and the fact that the Respondent did not also make out a case in libel, the lower Court had no business going further to consider the case of the Appellant because the onus of proof never shifted to the Appellant – Agu v. Nnadi (2002) 18 NWLR (Pt.798) 103, Ugoji v. Onukogu (2005) 16 NWLR (Pt. 950) 97. The lower Court ought to have dismissed the case of the Respondent without more. This Court finds and holds that the Respondent did not sufficiently discharge the burden of proof on him on the state of the pleadings and on the evidence led thereon to entitle him to judgment. The first issue for determination is resolved in favour of the Appellant.
This resolution of the first issue for determination is sufficient to determine this appeal. However, in view of the fact that this Court is not the final Court in the judicial hierarchy, it is wise that it goes further to look at the two other issues for determination raised by the parties, in case it turns on a further challenge that its findings on the first issue for determination are wrong – Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522, Iwunze v. Federal Republic of Nigeria (2013) 1 NWLR (Pt.1334) 119 and University of Calabar v. Akintunde (2013) 3 NWLR (Pt.1340) 1.
The complaint of the Appellant on the second issue for determination is that the sum of N500,000.00 awarded as general damages by the lower court is excessive, arbitrary and on the very high side in the circumstances of the case. Damages is the disadvantage which is suffered by a person as a result of the act or default of another. It is the loss or deterioration caused by the negligence, design or accident of one person to another, in respect of the latter’s person or property. Damages is the pecuniary recompense given by the process of law to a person for the actionable wrong that another has done. It is compensation in money for loss or damage. Thus, an injury produces a right in them who have suffered any damage by it to demand reparation of such damage from the authors of the injury. In other words, damages is a pecuniary compensation or indemnity which may be recovered in the courts by any person who has suffered loss, detriment or injury, whether to his person, property, or right through the unlawful act or omission or negligence of another. It is money compensation sought or awarded as a remedy for a breach of contract or tortuous acts.

As a matter of general principle, an appellate court will not interfere with an award of damages by a trial court simply because if faced with a similar situation and circumstance, it would have awarded a different amount. An appellate court will only interfere where it is shown that (i) the trial court acted under a mistake of law or upon some wrong principle of law; or (ii) the award is arbitrary; or (iii) the amount awarded is so extremely high or low as to make it, in the judgment of the appellate court, an entirely erroneous estimate of the damages to which the plaintiff is entitled; or (iv) there was a wrong exercise of discretion in the award; or (v) the trial court acted in disregard of principles of law; or (vi) the trial court acted under a misapprehension of fact; or (vii) the trial court took into account irrelevant matters or did not take account of relevant matter; or (viii) injustice will result if the appellate court does not interfere – Oduwole v. West (2010) 10 NWLR (Pt. 1203) 598, Guardian Newspapers Ltd v. Ajeh (2011) 10 NWLR (Pt.1256) 574.In dealing with the issue of damages, the lower Court said thus:
“In his pleadings and evidence the plaintiff as PW1 claimed that he is a businessman. He did not say what business he was/is doing. In the pleadings and evidence he referred to his business community and business associates without also stating who they were or are. Under cross-examination he said he is a contractor he does building construction. He also trades in vehicles. The only witness he called said the plaintiff did not buy any car directly from him before this issue that brought the plaintiff to court. The witness whom the plaintiff called said that he had known the plaintiff as a neighbor for ten years. He did not say he knew him as a business man.
On this evidence it cannot seriously be said that the plaintiff has established that he is a business man. This failure to actually prove that he is a business man in my view will affect the amount of damages to be awarded by this court.
Issues 1 and 2 are hereby resolved in the positive while issue 3 is resolved in the negative. The three issues having been resolved, I find the plaintiff entitled to judgment in his favor against the Defendant.
Judgment is hereby entered in favor of the plaintiff against the Defendant in the sum of N500,000.00 …only as general damages for breach of contract” (see Page 127 of the records)
Now, general damages means such as the law itself implies or presumes to have accrued from the wrong complained of, for the reason that they are its immediate, direct and proximate result or such as necessarily results from the injury, or such as did in fact result from the wrong, directly and proximately and without reference to the special character, condition or circumstances of the claimant. General damages are such as the court may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man. General damages is quantified or calculated by relying on what would be the opinion and judgment of a reasonable man in the circumstances of the case and since general damages is always at large, the trial court may also take into account the motive and conduct of the defendant where they aggravate the claimant’s injury GKF Investments Ltd. v. Nigeria Telecommunications Plc (2009) 15 NWLR (Pt 1164) 344, Tanko v. Mai-waka (2010) 1 NWLR (pt 1176) 468, Kopek Construction Ltd v. Ekisola (2010) 3 NWLR (pt 1182) 61, Aluminium Manufacturing Co. Nigeria Ltd. v. Volkswagen of Nigeria Ltd. (2010) 7 NWLR (Pt.1192) 97.
An award of general damages is not given as a matter of course, but on sound and solid legal principles, and not on speculation or sentiment. It is not awarded at large or out of sympathy borne out of extraneous considerations, but rather on legal evidence of probative value adduced for the establishment of an actionable wrong or injury – Effiong v. Ata Isi Supplies & Services Ltd. (2011) 6 NWLR (Pt. 1243) 266. It calls for some measure of quantification and a careful exercise of judicial discretion and it is not an exercise of judicial discretion if the basis for the award is not demonstrated – United Bank for Africa Plc v. Samba Petroleum Co. Ltd. (2002) 16 NWLR (pt 793) 361. In a breach of contract matter, the relief of general damages not only requires proof of the alleged acts in breach of the contract, credible evidence is also required to prove the extent of general damages claimed by the plaintiff Gambo v. Ikechukwu (2011) 17 NWLR (Pt. 1277) 561.In the instant case, the lower Court found that the Respondent did not lead any credible evidence to prove the extent of the general damages claimed and yet it went ahead to award the sum of N500,000.00 as general damages. Nowhere in the entire judgment was the exact injury suffered by the Respondent identified and/or stated. The award of damages was not tied to any proven loss suffered by the Respondent. The award was at large and the basis for the award was not demonstrated in the judgment. The Respondent was only entitled to nominal damages in the circumstances and the award of N500,000.00 was excessive and on the high side and it was arrived at arbitrarily. An award in the sum of N200,000.00 should have sufficed. The second issue for determination is resolved in favour of the Appellant.
The third issue for determination is in respect of the order of the lower Court striking out the reply address of the Appellant to the written address of the Respondent. In the proceedings of the 29th of June, 2010, counsel to the Respondent applied that the reply address of the Appellant be struck out as it was in breach of Order 31 rule 11 of the High Court of Kaduna State (Civil procedure) Rules 2007 which availed the Appellant a right of reply strictly on points of law. Counsel stated that by the reply address, the Appellant dealt on facts and sought to re-open its case and introduce new issues and that allowing it would amount to a breach of fair hearing. The lower Court initially stated that it would take a decision on the application when considering the addresses of the parties and that if the reply address was not a reply on points of law, it would disregard it. Subsequently in the same proceedings, the lower Court took a look at the reply address and stated that it was not even titled reply on points of law and it struck it out as not being in compliance with the Rules of Court. (See page 116 of the records)
It is elementary that the purpose of a reply address is to respond to new points raised in the written address of the other party and it is to be limited to that purpose only and not used to raise and canvass new issues – Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) 208, Federal Republic of Nigeria v. Iweka (2013) 3 NWLR (Pt. 1341) 285, Kejawa v. State (2013) 3 NWLR (Pt. 1341) 380. The simple question to ask on this issue is – whether the reply address of the Appellant was limited only to responding to the issues of law raised in the Respondent’s written address? The reply address is on pages 98 to 105 of the records. A perusal of the address shows that it went beyond a reply on points of law to the Respondent’s address and it was largely a re-argument of the case of the Appellant. The reply address was clearly not in compliance with the Rules of Court. The lower court was thus on firm ground when it struck out the reply address of the Appellant.
It must always be understood that the Rules of Court are part of the machinery of justice made by the courts to regulate their proceedings and to help parties present their cases within a procedure made for the purpose of a fair and quick trial. They are designed to assist in obtaining justice with ease, certainty and dispatch. They partake of the nature of subsidiary legislation by virtue of section 18(1) of the Interpretation Act and consequently have the force of law. It is the strict compliance with the rules of court that makes for smooth and quick administration of justice. Accordingly, Rules of Court must prima facie be obeyed and followed by all the parties before the court – Aromolaran v. Oladele (1990) 7 NWLR (Pt. 162) 359, Duke v. Akpabuyo Local Government (2005) 19 NWLR (Pt. 959) 130, Owners of the MV “Arabella” v. Nigeria Agricultural Insurance Corp (2008) 11 NWLR (pt 1097) 182, Agip (Nig) Ltd. v. Agip Petroli International & Ors. (2010) 5 NWLR (R 1187) 348, Oyegun v. Nzeribe (2010) 7 NWLR (Pt.1194) 577. The striking of a process of court that is in non-compliance with the Rules of Court cannot amount to a denial of fair hearing. The third issue for determination is resolved in favour of the Respondent.
In conclusion, in view of the resolution of the first issue for determination in favour of the Appellant, this Court finds merit in this appeal and same is hereby allowed. The judgment of the High Court of Kaduna State in Suit No.KDH/KAD/399/2009 delivered by Honorable Justice J Abiriyi (as he then was) on the 13th of July, 2010 is hereby set aside. The parties shall bear their respective costs of this appeal. These shall be the orders of this Court.

DALHATU ADAMU, J.C.A.: I have the privilege of reading the draft copy of the lead judgment of my learned brother Habeeb Adewale Olumuyiwa Abiru, J.C.A. in this appeal. I agree with his reasoning and conclusion that the appeal is meritorious on the first issue for determination. I hereby also allow the appeal. The judgment of the High Court of Kaduna State in KDH/KAD/339/2009 delivered by Hon. Justice Abiriyi (as he then was) is hereby set aside. I also abide by the order on costs as made in the lead judgment.

ITA G. MBABA, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, HABEEB A. ABIRU, J.C.A. and I appreciate his rich exposition of the law relating to negligence and proof the same in this appeal.
Some faults can however be traced to the handling of the Appeal by the Respondent, when it failed to cross appeal or raise Respondents’ Notice, to protest the findings of the trial court on pages 124 – 125 of the Records when he held that:
“From the statement of claim and evidence of PW1 and PW2 plaintiff claims that he issued the cheques Exhibits 4 and 2 to the PW2 and one IKECHUKWU E. NWAEZUOKE and they were returned unpaid did on the ground that the plaintiff did not have funds in his account. The person to whom Exhibit 2 was issued did not testify. So whatever PW1 and PW2 said in respect of Exhibit 2 as to why it was returned unpaid is hearsay evidence and of no evidential value.
PW2 who was issued with Exhibit 4 in his evidence in Chief said he was informed that payment would not be made to him because the account of the plaintiff was in credit. But under cross-examination, the same witness said he did not know why the bank refused to pay him. In his evidence in Chief, he had said that when the plaintiff came, the bank insisted that there was no money and returned the cheque to the plaintiff. It is incredible that the PW2 who purportedly heard the Defendant’s agents twice stating that there was no money in the account and returning the cheques to the plaintiff would under cross-examination make a somersault and say he did not know why the bank refused to pay him. The same witness who claimed to have called the plaintiff on phone when the bank refused to pay him under cross-examination, was not sure whether it was the plaintiff’s MTN number he called.
On this evidence I am unable to find that the cheques were returned because the Defendant said the plaintiff’s account was not in credit. No credible evidence has been led in proof of the fact that the cheques were returned for that reason or that the plaintiff was called on phone by the PW2 and he went to the bank. As there is no evidence that the plaintiff was called to the bank by PW2 and so did not go until the following day when he got the statement of account, he could not say why the cheques were returned unpaid”
It is true, that by law, a finding of the trial court, against which there is no appeal, remains binding and conclusive. SHEKKA V. ABUBAKAR (2012) 4 NWLR (Pt.1291) 497; OKOTIE – EBOH v. MANAGER (2004) 18 NWLR (Pt.905) 242. But where there is an evidence on the Records, and other finding of the court that tends to show that the findings not appeal against was perverse, I think the appellate Court can intervene, especially as the Appellant’s ground 1 of the Appeal is that “The judgment is against the weight of evidence” thereby giving this court the power to review the entire evidence, vis-a-vis the findings of the trial court.
The trial court had earlier held, and rightly in my opinion, that the Appellant had the burden of proof to justify its refusal or failure to honour the cheques issued by the Respondent on the grounds of the alleged duty of care to the Respondent, but that it failed and refused to show the reasons why it dishonoured the cheque. Hear the court.
“On the evidence led by the Defendant therefore, it is not possible to say that it has discharged the burden on it of proving irregular signatures, contradictory instructions and that the people who presented the cheques could not identify themselves to the satisfaction of the defendants. The Defendants had a duty to show why the cheque(s) which was processed partially was returned unpaid. This in my view they have not done.” (Page 126 of the Records)
I think having established the contractual relationship between the Appellant and the Respondent on the issue of the account and the credit balance of the Respondent in the Appellant; that the Appellant held the money of the Respondent, sufficient to settle the obligation in the cheque(s), and that the Respondent had the right to draw from the account by means of the cheque(s), and that the Appellant had a duty to honour the cheque(s), on presentation, the fact of negligence alleged by the Respondent is established, once the Appellant admits that Respondent was credit worthy at the time the cheque(s) was presented, but failed to pay or honour the cheque(s), and that without any lawful reason, as held by the trial court.
After all, a cheque, by its very nature is an Order by the Customer to the Bank, which custodies the customer’s money/deposit, to pay to 3rd party, who presents the cheque to the bank. The duty of the Bank to take due steps to scrutinize, to make sure that the customer, in fact, issued the cheque, is understandable but it must be seen to work in the interest of the customer, not against him.
By the refusal or failure of the Appellant to honour the cheque issued by the Respondent, after admitting that the Respondent was in credit, it became apparent that even the much touted duty of care, which the Appellant claimed made it refuse to honour the cheques was an after-thought:
If it was sincere, Appellant would have put a call through to the Respondent, to confirm whether or not he issued the cheque(s). In this era of internet, technology and communication revolution, in which almost any information can be sourced and gotten in a flash, Appellant has no excuse for failing to reach out to the Respondent, to confirm the cheque(s). After all, that is why banks insist on having contact addresses, telephone numbers and e-mail addresses of their customers!
I think the law would be unduly technical, to require the Respondent to prove more than how he did in the case, as per his evidence and that of PW2, which showed that the Appellant refused to pay, alleging that he (Respondent) did not have sufficient credit in the account. Even when the Respondent was called to the Bank on the issue, the bank staff stood his grounds!
The trial Court had capitalized on a line of evidence by PW2, under cross examination to hold against PW2. But I think the PW2’s reply under cross-examination that he “did not know why the bank refused to pay him,” can be seen as an expression of exasperation, that he could not understand why the bank refused to pay him, in the circumstances! After all, in civil claims, the plaintiff is expected to prove his case on the balance of probabilities, not beyond reasonable doubt, as in criminal trial! (OLUBODUN v. LAWAL (2008) ALL FWLR (Pt. 434) 1468.
I do not, therefore, agree with the findings of the trial court, that, because the PW2 expressed that exasperation, the Respondent failed to prove that the Appellant was negligent, or to prove that the bank did not say Respondent did not have sufficient funds in the account the reason it refused to pay on the cheque(s). That did not make the PW2 a witness that could not be believed.
I think that findings was perverse, being not in keeping with the evidence adduced, and being in opposition with other findings of the trial Court.
I think the Respondent had led credible evidence to prove negligence and a breach of contract, by Appellant’s failure to honour the cheques. See the case of A.M. CO. NIG. LTD v. Vol. SWAGEN NIG. LTD. (2010) 7 NWLR (Pt. 1192) 97 ratios 2 – 3, on the meaning and proof of negligence, where this Court said:
“Negligence is the breach of legal duty of care owed by the defendant to the plaintiff, which results in damage. It consists of a failure to exercise due care in a case in which a duty to take care exists. Negligence is a tort which is complete when the following conditions are satisfied:
(a) that the defendant owes a duty of care to the plaintiff;
(b) that the defendant acted in such a way as to breach that duty of care; that the conduct of the defendant was careless and not that of a reasonable man.
(c) That damages resulted to the plaintiff as a result of the breach.
(ORHUE v. N.E.P.A. (1998) 7 NWLR (Pt.557) 187; U.T.B. (NIG.) v. OZOEMENA (2007) 3 NWLR (Pt.1022) 448 REFERRED TO) (P. 119, PARAS. D – E)
Where one has a duty to another, under law, and evidence is shown that he failed to discharge that duty, leading to the injury of the other person, having admitted that he owed the duty, (and has not justified his failure to discharge the duty), the law would assume that he (the person who owed the duty and failed to discharge it) has failed or neglected to do his work. See KANO SONS AND COY. LTD. v. FBN (2006) 5 SC. (Pt. 111) 80.
“A party suing for negligence must show that the defendant owed him a duty of care and that he suffered damage in consequence of the defendant’s failure to take care. “AGBONMAGBE BANK LTD v. CFAO, (1966) NLR 40 NGILARI v. MOTHERCAT LTD. (1999) 13 NWLR (Pt.636).
On the issue of award of damages by the trial court, we have a long Line of authorities discouraging or outlawing interference by appellate court, simple because, it thinks that if had heard the case in the first instance, it would have given a lesser sum. Appellate Court can only interfere, if the trial Court acted on a wrong principle of law and made an entirely erroneous estimate of the damages. SABIU MOTORS LTD v. RAJAB ENTER. NIG. LTD. (2002) 7 NWLR (Pt.766) 243; UBN PLC v. AJABULE AND ANOR. (2011) LPELR-8239 (sic); OGUNSAKIN v. EDO LOCAL GOVERNMENT AREA KWARA STATE (2011) LPELR-8816 (C – A).
There is evidence that the Respondent was surcharged the sum of over N200,000.00 because of the refusal of the bank to pay the cheque, as Respondent’s creditor, entitled to draw on the cheque, exacted that amount from the Respondent for breach of agreement. I think that alone was enough to justify the award of N500, 000.00 to him. Award of general damages is exclusively in the province of the trial judge, and as per his discretion, which cannot be questioned, unless it was not exercise judiciously and judicially. Award of general damage is not subject to strict prove as in special damages.
I therefore resolve the issues against the Appellant and hold that the appeal is without merit, as I uphold the judgment of the trial court in the case KDH/KAD/399/2009 delivered on 13/7/2010.
Parties to bear their respective costs.