DIAMOND BANK PLC v. DR. LEVI CHULKS MONANU
(2012)LCN/5804(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of May, 2012
CA/E/42/2008
RATIO
PLEADINGS: NATURE OF PLEADINGS
Authorities have consistently held to the effect that “pleadings” are summary of the facts of a case that must be served on an opponent to enable him have notice of facts that will be in contention at the hearing, Hence authorities have also consistently held to the effect that the basic purpose or function of “pleadings” is to avoid springing surprises on the other party; accordingly parties are bound by their “pleadings” and must not go beyond what they have pleaded in their evidence as doing this will render evidence so given a non-issue and liable to be struck out or discountenanced by the Court. See ALIBO v. OKUSIN [2010] All FWLR (Pt.529) 1059. In other words, the issues that call for resolution in a case being tried on pleadings are circumscribed and fixed by the pleadings of the parties before the Court. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
ACTION: WHO CAN NOMINATE THE ISSUES FOR DECISION
It is also settled law that it is the plaintiff who brings a suit before the court that also primarily nominates the issues for decision in the case. See LONGE v. FIRST BANK OF NIGERIA PLC [2012] ALL FWLR (PT.525) 258; and NKUMA v. ODILI [2006] ALL FWLR (Pt. 313) 24. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
COURT: REQUIREMENT FOR COURTS TO DECIDE ISSUES SUBMITTED TO THEM
There is no doubt that Courts are indeed obligated to decide issues submitted to them, but it is only issues in respect of which parties have properly joined issues on the pleadings in a trial conducted upon pleadings, that a court has the bounden duty to decide. Hence the consideration by appellate courts of the pleadings of the parties in order to have a clear understanding of the nature of dispute between the parties in an appeal and how the lower court approached the issue. See KOPEK CONSTRUCTION LTD. v. EKISOLA [2010] All FWLR (Pt.519) 1035. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
BANKING LAW: DUTY IMPOSED ON A BANK
The duty imposed on a bank is clear in law. It is a duty to exercise reasonable care and skills and which extends over the whole range of banking business within the contract with the customer. See: STANDARD TRUST BANK LTD. v. ANUMNU [2008] 14 NWLR (PT.1106) 125. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
Before Their Lordships
AYOBODE OLUJIMI LOKULO-SODIPEJustice of The Court of Appeal of Nigeria
ADAMU JAUROJustice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJIJustice of The Court of Appeal of Nigeria
Between
DIAMOND BANK PLCAppellant(s)
AND
DR. LEVI CHUKS MONANURespondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment delivered on 12/11/2007 by the High Court of Justice, Enugu State (hereafter simply referred to as “the lower Court”) presided over by Hon. Justice A. R. Ozoemena (hereafter simply referred to as “the learned trial Judge”). The Judgment appealed against was entered in favour of the Plaintiff by the learned trial Judge. The Plaintiff before the lower Court is now the Respondent in the instant appeal.
The case of the Respondent as set up in his Statement of Claim dated 4/12/1998 and filed on 7/12/1998 briefly stated are that the Respondent operates a current account No.391277028 with the Appellant at its branch at No.22 Okpara Avenue, Enugu. That the Respondent issued a cheque No.1450836 in the sum of N1,000,000.00 drawn on the account, to one Mr. J. Okpagu (hereafter simply referred to as “Okpagu”) for the purpose of clearing the Respondent’s goods to be imported from overseas. At the time of issuing the cheque, the Respondent had the sum of N978,718.09 only, in the account and the cheque was to be cashed only on the condition that the money would be used for the transaction. That the Respondent intended to pay additional sum into the account to enable Okpagu carry out the transaction upon the receipt of information from the said Okpagu that the goods were available to be released to him. The said Okpagu went to the Appellant’s Branch at Onitsha whereat he got information from the Appellant’s staff that the cheque would be dishonoured if presented for payment and was advised by the Appellant to pay the sum of N70,000.00 into the Respondent’s account in order to cash the cheque issued to him. That on 9/4/1998, Okpagu deposited a cheque in the sum of N70,000.00 into the Respondent’s account and was paid the N1,000,000.00 by the Appellant the same day. That the Appellant by its actions enabled Okpagu to embezzle the Respondent’s N1,000,000.00 without rendering the services which the money was meant for. The Respondent alleged that the Appellant never consulted him or phoned him before paying the cheque that was drawn on his account, as it normally did. That the Appellant by acting in the manner it did, breached the fiduciary relationship between the Appellant and the Respondent and has revealed the statement of the Respondent’s account to a third party which it should not have done. The Respondent claimed to have suffered great loss in that Okpagu collected both his money and his goods worth N5,000,000.00. In the premises, the Respondent claimed from the Appellant “the sum of N5,000,000.00 (Five Million Naira) General Damages for false manipulation of his account and loss of his money and goods”.
In its Statement of Defence dated 28/12/1998 and filed on the same date, the Appellant admitted that the Respondent maintains with it, the account mentioned by the Respondent in the Statement of Claim. The Appellant also admitted that it paid the cheque mentioned in the Statement of Claim in the sum of N1,000,000,00 and that it debited the Respondent’s account (which was adequately funded) with the amount thereof. The Appellant claimed that the Respondent’s cheque was regular on its face; it was duly drawn and signed in accordance with the Respondent’s instructions to it; and there were no conditions or other endorsements stated on the cheque. The Appellant denied using any information supplied to it by the Respondent for any purpose or in any manner than that for which it was held or supplied. The Appellant claimed that it exercised due diligence in paying the cheque drawn on it by the Respondent, and cheque No.2004362 in the sum of N700,000,00 drawn on it by Okpagu. That both cheques, were paid in good faith and in the ordinary course of business. That neither of the cheques, was paid across the counter but each was deposited into the appropriate accounts of the payees and paid accordingly. The Appellant also claimed that it had no dealing with Okpagu as alleged by the Respondent or at all, but that it acted in good faith in the ordinary course of business with him. The Appellant not only denied that the Respondent suffered any loss of his money as alleged or at all and that the Respondent is fishing for damages, but also that it will rely on all statutory, equitable and legal defences open to it at trial.
Being dissatisfied with the Judgment of the lower Court, the Appellant on 15/11/2007 lodged a Notice of Appeal of the same date against the said Judgment. The Notice of Appeal contained the omnibus Ground of Appeal and the reliefs sought in the Notice as set out therein read thus:-
“1. An order allowing the appeal.
2. An order setting aside the Judgment of the lower Court delivered on Monday, 12th November 2007 in this suit.
3. An order dismissing the suit filed by the Plaintiff.
4. An order entering Judgment in favour of the Defendant/Appellant”
Pursuant to the Order of this Court made on 10/6/2009, the Appellant on 11/6/2009 filed an amended Notice of Appeal on the same date. The amended Notice of Appeal contains nine (9) Grounds of Appeal and the reliefs sought therein are ipsissima verba with those set out in the original Notice of Appeal (supra).
In accordance with the Rules of this Court, parties duly filed and exchanged Briefs of Argument. Appellant’s Brief of Argument dated 20/3/2008 and filed on 25/3/2008 as well as Appellant’s Reply Brief dated 10/8/2009 and filed on 13/8/2009 were settled by R. U. Ezeani; while Respondent’s Brief of Argument dated 9/7/2009 and filed on 10/7/2009 was settled by Igwe A. C. Onwu. The Appeal was entertained on 29/2/2012, and both learned Counsel for the parties adopted and relied upon the Briefs of Argument they filed on behalf of their respective clients as hereinbefore identified, in support of their positions in the Appeal.
The Appellant formulated three Issues for determination in the Appeal, in his Brief of Argument. The Issues are:-
“1. Was the learned trial Judge right in his decision that the Appellant was negligent and colluded with Mr. Okpagu?
(Grounds 1, 2, 3, 4, 5, 6 & 7)
2. Did the failure of the learned trial Judge to decide the question of abuse of process, on which he was addressed by the parties, occasion a miscarriage of justice in this case?
(Ground 8)
3. Was the award of damages and cost against the Appellant improper and/or excessive in all the circumstances of this case?
(Ground 9)”
The three Issues for determination in the Appeal as formulated by the Respondent in his Brief of Argument read thus:-
“1. Whether the decision of the High Court is not justifiable in view of the peculiar facts and circumstances of the case.
2. Did the failure of the learned trial Judge to decide the question of abuse of process, on which he was addressed by the parties, occasion a miscarriage of justice in this case.
3. Was the award of damages against the Appellant improper and/or excessive in all the circumstances of this case.”
The Appeal will be determined upon the Issues formulated by the Appellant, particularly as the Respondent who chose to formulate his own Issues did not bother to marry or tie the Issues he formulated to the Grounds of Appeal. Parties have consistently been admonished to marry or tie the Issue or Issues they formulate for determination in an Appeal to Grounds of Appeal. In any event, I am of the considered view that Issues 1 and 3 formulated for determination by the parties are of the same purport; while it is glaring that their respective Issue 2 are the same word for word. It is also pertinent to state that in resolving the Appeal on the Issues formulated by the Appellant, I intend to consider Issue 1 first, given the nature of the complaint raised therein, and the irretrievable or severe consequence of retrial which its resolution in the positive portends for the Judgment appealed against.
DID THE FAILURE OF THE LEARNED TRIAL JUDGE TO DECIDE THE QUESTION OF ABUSE OF PROCESS ON WHICH HE WAS ADDRESSED BY THE PARTIES, OCCASION A MISCARRIAGE OF JUSTICE? (Appellant’s Issue 2)
Dwelling on the Issue, the Appellant said to the effect that the issue that the Respondent’s suit was an “abuse of process” was raised in his written address before the lower Court and that the Respondent duly replied to the same in his own written address. The Appellant accused the learned trial Judge of failing to decide on the issue and submitted that this was wrong of the learned trial Judge, against the backdrop of the position of law that a Court has a constitutional duty of deciding all disputes submitted to it, and the case of Aigbobahi v. Aifuwa (2006) 6 NWLR (pt.976) 270, was cited in aid. The Appellant further submitted that the failure of the learned trial Judge to consider and decide the issue of “abuse of process” has occasioned it, a miscarriage of justice. The Appellant disclosed in his Brief of Argument that he predicated the issue of “abuse of process” on the fact that the Respondent’s case in his pleading and evidence at the trial, is that he knew he did not have enough money in his account to cover the cheque of N1,000,000,00 he issued to Okpagu as at the time the said cheque was issued. That this amounted to the Respondent issuing the cheque in question to induce Okpagu to render a service to him, or his company, or to obtain a credit, from Okpagu. The Appellant referred to Section 1 of the Dishonoured Cheques Act, Cap. D11 Laws of Nigeria 2004, as making it criminal for any person to issue a cheque for the purpose of obtaining or inducing the delivery of anything capable of being stolen to himself, or another, or for the purpose of obtaining credit for himself, or another. The Appellant submitted to the effect that though it innocently foiled the Respondent’s actions, the same still constituted an offence of attempt to commit a crime and referred to Section 4 of the Criminal Code in this regard. The Appellant submitted that the Respondent’s claim in the circumstances was really one that he be compensated because the Appellant foiled his criminal intent and actions; alternatively, it is a claim against it (Appellant) for performing a statutory duty in complying with Section 75 of the Bills of Exchange Act, Cap. B8, Laws of Nigeria 2004, which obligated it to honour every cheque unless there was a countermand, by or death of the drawer. The Appellant submitted that the learned trial Judge by failing to consider the issue of “abuse of process” and going further to award damages and costs against it, lent the authority of the Court to these aberrations, and that it was wrong of the lower court to do this. The case of Enekwe v. I.M.B (Nig) Ltd. (2006) 19 NWLR (pt.1013) 146 was cited in aid of the stance of the Appellant. The Court was urged to resolve this issue in favour of the Appellant.
The stance of the Respondent is that the issue of “abuse of process” does not arise in the instant case at all. The Respondent stated to the effect that the Appellant never filed a Counter-Claim wherein it made “abuse of process” an item of claim and that the issue having not been raised by the pleadings of the parties upon which the case was fought before the lower Court was a non-issue. That in any event, parties never adduced evidence on the issue through any of their respective witnesses. The Respondent also submitted to the effect that the lower Court was not bound to make a decision on the issue of “abuse of process” in respect of which parties never adduced any evidence, as the same was raised suo moto by the Appellant in its written address and the case of Anyanwu v. Iwuchukwu (2001) FWLR (Pt.32) 1, was cited in aid. The Respondent submitted to the effect that in any event, his suit is not an abuse of court process having regard to the facts pleaded in the Statement of Claim, vis-‘E0-vis the settled position of law, concerning what constitutes abuse of court process. The cases of Awofeso v. Oyenuga (1996) 7 NWLR (Pt.460) 361 at 363, and Saraki v. Kotoye 1992 9 NWLR (Pt.264) at 156 were cited in aid of what constitutes abuse of court process.
Dwelling on the arguments of the Appellant based on the Dishonoured Cheques Act (supra), the Respondent submitted to the effect that it was wrong of the Appellant to have imported the Act into this case. That the cheque in question was issued pursuant to an agreement between him and Okpagu and was only to be cashed upon the occurrence of a specified condition. That in any event, Okpagu never complained that the Respondent duped him or wanted to dupe him; and that the Appellant has no business in the circumstances. The Respondent also submitted to the effect that it was now clear that the Appellant paid his money to Okpagu to frustrate the attempt of the Respondent to dupe Okpagu, it is now left for the Court to determine whether the action of the Appellant in this regard, was justifiable. The Court was urged to resolve this Issue in favour of the Respondent.
In his Reply Brief, the Appellant responded to the arguments of the Respondent on the issue of abuse of court process. The Appellant submitted that the Issue of abuse of process was properly raised before the lower court. In this regard the Appellant not only still referred to the paragraphs of the Respondent’s pleading that it had earlier referred to in its Brief of Argument, but now added paragraphs 9 and 10 of its own pleading wherein it was averred to the effect that (i) the Respondent is fishing for damages against the Appellant and is not entitled as claimed or at all; and (ii) the Appellant shall rely on all statutory, equitable and legal defences open to it at the trial.
The Appellant cited the case of In African Re: Corp v. JDP Const (Nig) Ltd. (2003) 13 NWLR (Pt.838) 609 on the issue of abuse, and submitted to the effect that fishing for damages makes a case lack bona fides, frivolous vexatious and oppressive. It is also the stance of the Appellant that there was ample evidence of abuse of process as listed in its Brief of Argument.
For the proper resolution of this Issue, it is necessary to state some trite principles of law.
Authorities have consistently held to the effect that “pleadings” are summary of the facts of a case that must be served on an opponent to enable him have notice of facts that will be in contention at the hearing, Hence authorities have also consistently held to the effect that the basic purpose or function of “pleadings” is to avoid springing surprises on the other party; accordingly parties are bound by their “pleadings” and must not go beyond what they have pleaded in their evidence as doing this will render evidence so given a non-issue and liable to be struck out or discountenanced by the Court. See ALIBO v. OKUSIN [2010] All FWLR (Pt.529) 1059. In other words, the issues that call for resolution in a case being tried on pleadings are circumscribed and fixed by the pleadings of the parties before the Court.
It is also settled law that it is the plaintiff who brings a suit before the court that also primarily nominates the issues for decision in the case. See LONGE v. FIRST BANK OF NIGERIA PLC [2012] ALL FWLR (PT.525) 258; and NKUMA v. ODILI [2006] ALL FWLR (Pt. 313) 24. This being the situation, all that a defendant need do is to resist the Plaintiff’s claims on the facts pleaded. It is not for a Defendant to set up facts which would convey that he is not just setting up a defence to the Plaintiff’s suit but setting up a new case of his own. A defendant is only permitted to do this, when he is setting up a Counter-Claim.
I have hereinbefore in this judgment, stated the gist or summary of cases of the Respondent and the Appellant respectively, on their pleadings. The Respondent given his case on his pleading cannot be said to have set up the case, that his case or suit is an abuse of process of court or what the Appellant in its submissions simply referred to as “abuse of process”. The Appellant in his submissions never referred to any paragraph in his pleadings wherein it raised the issue of “abuse of process”. Indeed, it is clear from the submissions of the Appellant in its Brief of Argument on the issue, that it was in its written address before the lower Court, that it raised the said issue. The Appellant has however submitted in its Reply Brief that it raised the issue of “abuse of process” in paragraphs 9 and 10 of its Statement of Defence (the purport of which had hereinbefore been stated). I do not think that the Appellant is right that it raised the issue of the Respondent’s suit being an “abuse of process” in its pleading and particularly by the averments contained in paragraphs 9 and 10 thereof. This is because, it would appear to be settled law that an issue that a case is an “abuse of process” or better still an abuse of court process must be clearly and distinctly pleaded to enable the party that is alleged to be in abuse of court process have sufficient or appropriate notice of the fact and for the said party to respond or react to the same as he may consider appropriate. The issue that an action is an abuse of court process should not be pleaded obliquely or indirectly. This position, in my considered view is fortified by the decision of this Court in the case of INTERNATIONAL BANK FOR WEST AFRICA v. SASEGBON [2007] All FWLR (Pt.388) 1099. The case was prosecuted on affidavit evidence and this Court per Galinje, JCA; at page 1114 said thus:-
“An abuse of court process is a product of facts. When facts leading to an abuse of court process are not disclosed sufficiently, it is difficult for a court or tribunal to hold that an abuse of court process has been occasioned. The disclosure of such facts before a court is done through an affidavit evidence. In absence of such disclosure the lower court was right when it discountenanced the address of counsel on the issue of abuse of court process on the grounds that the facts constituting the abuse of court process were not deposed to in an affidavit.”
As already stated, the law is settled that in a trial conducted upon pleadings, it is on the said pleadings that issues to be tried in the case are joined. It is therefore glaring upon the Appellant’s submissions in his Brief of Argument and indeed on the pleadings of the parties in the instant case, that parties definitely cannot be said to have joined issues on whether or not the Respondent’s suit constituted “abuse of process”. In the circumstances, the fact that the Appellant made the issue of “abuse of process” as one of the issues for determination in the case in its written address, and the fact that the learned trial Judge at page 155 of the record re-produced the said issue as one of the issues which the Appellant set out for determination in the case, therefore cannot rightly transform or translate the same, to an issue for determination in the Respondent’s case.
The Respondent in his arguments on the issue of abuse of court process and whether or not the failure of the learned trial Judge to make a decision on the same, occasioned a miscarriage of justice said this much and I am clearly in agreement with him. All the arguments of the Appellant on the issue of “abuse of process” in my considered view not only show its complete or total misapprehension of the Respondent’s case, but lack of understanding as to how parties join issues on matters in a trial conducted on pleadings.
The pertinent question now is, given the conclusion that the issue of “abuse of process” canvassed in the appeal cannot be said to have arisen upon the pleadings of the parties before the lower court, can the learned trial Judge’s non-decision on the issue be said to have occasioned the Appellant a miscarriage of justice? The Appellant has argued that the lower court is constitutionally obligated to decide issues submitted to it.
There is no doubt that Courts are indeed obligated to decide issues submitted to them, but it is only issues in respect of which parties have properly joined issues on the pleadings in a trial conducted upon pleadings, that a court has the bounden duty to decide. Hence the consideration by appellate courts of the pleadings of the parties in order to have a clear understanding of the nature of dispute between the parties in an appeal and how the lower court approached the issue. See KOPEK CONSTRUCTION LTD. v. EKISOLA [2010] All FWLR (Pt.519) 1035.
The lower Court in its judgment apparently did not consider the issue of “abuse of process” to have arisen for determination in the instant case, and therefore never gave it any further consideration in its judgment aside from just setting it out as one of the issues formulated for determination by the Appellant (which could not have rightly nominated the issues for determination in the case). Contrary to the stance of the Appellant, I have hereinbefore in this judgment expressed the view that it is not right or correct that the Appellant raised the issue of the Respondent’s being an “abuse of process” in its pleading and particularly by the averments contained in paragraphs 9 and 10 thereof. For avoidance of doubt, I say again that I have painstakingly examined the pleadings of the parties and I do not find the Respondent and the Appellant to have joined issues on the Respondent’s suit being an “abuse of process”. Accordingly and whether or not evidence was adduced by the parties under examination-in-chief or elicited under cross-examination, on the issue, evidence in that regard went to no issue.
Issues are joined, not upon evidence at trial; rather evidence adduced in a trial is used to resolve issues properly joined by parties. In the circumstances, the issue of “abuse of process” not being one in respect of which parties joined issues in the instant case, did not properly arise for determination by the learned trial Judge and non-decision on the issue by the learned trial Judge in the Judgment cannot by any stretch of imagination have occasioned the Appellant any miscarriage of justice.
Flowing from all that has been said before now, is that Appellant’s Issue 2 is resolved against it.
WAS THE LEARNED TRIAL JUDGE RIGHT IN HIS DECISION THAT THE APPELLANT WAS NEGLIGENT AND COLLUDED WITH MR. OKPAGU? (Appellant’s Issue 1).
Having referred to what the learned trial Judge said in the judgment at page 165, of the record concerning the question of negligence, the Appellant submitted to the effect that negligence of any or whatever kind did not arise in the instant case at all. That giving the averments in the Statement of Claim, not only is the claim of the Respondent not based on negligence but also there were no particulars of negligence pleaded and no evidence was adduced by the Respondent in support of the question of negligence. The Appellant submitted that it is trite that a court is not a charitable institution and has no power to set up a case different from that which the parties have brought before it and cited in aid the cases of Akinlagun v. Oshoboja (2006) 12 NWLR (pt.993) 60 at 81; and Ekpeyong v. Nyong (1975) 2 SC 1. The Appellant submitted that the ex gratia importation of negligence into the case by the learned trial Judge is wrong in law.
Dwelling on the question of collusion with Okpagu, the Appellant submitted that the pith of Respondent’s case is spelt out in paragraphs 6 & 9 of his Statement of Claim. That the averments in the said paragraphs, depict positive acts by the Appellant and an alleged pattern of behavior by the parties, but that the Respondent failed to prove same. The Appellant said that the approach adopted by the learned trial Judge, was to assume that these facts were proved, and/or to look for disproof of the facts, by it (Appellant). Reference was made to page 163, line 9 – page 164, line 2, of the record in this regard. That the approach adopted by the learned trial Judge and which placed the burden of proof in the case on it (Appellant) was wrong in the face of his finding at page 162, lines 18 – 21 of the record that that crime was in issue in the case, and that this has occasioned it a miscarriage of justice. The case of Nwankwoala v. State (2006) 14 NWLR (Pt. 1000) 663 was cited by the Appellant in relation to burden of proof in a criminal trial. The Appellant said to the effect that it was not only clear from the evidence of PWs 1 and 2, that it was the Respondent himself that gave Mr. Okpagu information concerning the status of his account but also disclosed the same information to other people, Aside from these, the Appellant said that the Respondent did not know the name of its staff that divulged information concerning him or who colluded with Okpagu. That as the Respondent and his witnesses were not present at the bank on the day the transactions complained of occurred, it was clear that it was from his statement of account that the Respondent concluded that the Appellant must have disclosed information concerning his account to Okpagu. That if the Respondent were to be believed, it was obvious that he was speculating on what happened, and which situation contradicted the Respondent’s testimony that he disclosed to Okpagu and others information about his account. That as the cheque it (Appellant) paid was regular on its face and there was no instruction from the Respondent to it (Appellant) not to honour the cheque, it was clear that it followed due process before paying the cheques; while the Respondent’s evidence on the necessity for Appellant to call him before paying on his cheques was contradictory. That it (Appellant) produced Respondent’s account mandate cards, i.e. Exhibit F (which showed that Respondent never gave any such instruction), and which resulted in the findings of the learned trial Judge that “there was no written instruction from the Respondent to this effect, and that besides, the Respondent’s mandate cards, do not contain such instructions”, The Appellant submitted to the effect that in the light of the pieces of evidence it had highlighted, it is difficult to justify finding of the learned trial Judge that it (Appellant) colluded with Okpagu, or the curious decision that it (Appellant) was expected to have confirmed from the Respondent, before paying his cheque. That this is particularly so, when the evidence contained material contradictions and Exhibit F which embodied the contract between the parties, has no provision that the Appellant should call the Respondent before paying or honouring his cheques. The Appellant stated the position of law to be that extrinsic matters cannot be imported into a written contract and cited in aid, the case of Larmie v. DPMS Ltd. (2005) 18 NWLR (pt. 958) 438. The Appellant accused the learned trial Judge of not applying the proper treatment as laid down in the case of Mogaji v. Cadbury (1985) 2 NWLR (Pt.7) 393, to the contradictory evidence adduced by the Respondent, and submitted that the Respondent’s claim ought to have been dismissed on this ground. Also submitting that it was difficult to see how the learned trial Judge was unable to resolve the doubts in this case in its favour, the Appellant urged the court to resolve this Issue in its favour.
Dwelling on the Issue, the Respondent submitted that the relationship between him and the Appellant in the instant case is based on contract and that the contract is a special one, based on utmost good faith. That this implies that the Appellant owes a duty of care to him, not to manipulate, divulge or give any information concerning his account to a third party. The Respondent cited the cases of Selanger United Rubber Estate Ltd. v. Cradock (No.3) 1968 2 All E. R. 1073; and Agbanelo v. Union Bank of Nigerian (sic) Ltd. (2000) 4 SCNJ 353 at 367, in aid of the stance that the Appellant owes him the duty to exercise reasonable care and skill. The Respondent submitted to the effect that he adduced sufficient evidence to show that the Appellant did not act with diligence in relation to his account having regard to circumstances and manner in which his cheque was paid to Okpagu. The Respondent submitted to the effect that the circumstances and manner in which his cheque was paid without any equivocation showed that the staff of the Appellant at Onitsha made information concerning the status of his account available to Okpagu and that the information enabled Okpagu to pay N70,000.00 into his (Respondent’s) account and to have thereafter collected N1,000,000,00 therefrom.
Referring to Section 142 of the Evidence Act, 2004 which provides to the effect that the burden of proving a fact which is especially within the knowledge of any person, is on that person, the Respondent submitted that burden of proving the fact possessed by the Appellant, was on it. Reference was also placed on Section 139 of the Evidence Act (supra). While conceding that an allegation of criminal act in a civil case has to be proved beyond reasonable doubt, the Respondent submitted that it is not in all situations the word “fraud” is used in civil suits, that allegation of crime is raised, and cited in aid the cases of Arowolo v. Ifabiyi (2002) 4 NWLR (Pt.757) 356; and Nwankwere v. Adewunni (1969) NMLR 45. Likewise, the Respondent submitted to the effect that the use of the word “Manipulation” in the instant case, did not raise the issue of crime and that the word “Negligence” employed by the trial Judge summed up the action of the Appellant.
Having stated that it was only the Appellant who had information concerning his account, the Respondent submitted that if there was no collusion between the Appellant and Okpagu, the Appellant should have contacted him as it had always done in the past, before honouring the cheque in question. This is more so when it was Okpagu who paid money into the Respondent’s account to enable him cash the N1,000,000.00 cheque. The Respondent stated that it specifically pleaded that the Appellant always phoned him to confirm his cheques before paying but this was not done in this particular case and that this fact was not specifically denied by the Appellant, by the averment in paragraph 6 of the Statement of Defence. It is the stance of the Respondent that a careful examination of Exhibits “A” and “E” – Statement of Account, shows that the payment of N1,000,000.00 was entered before the cheque for N70,000.00 was entered and that it was after the Appellant discovered its mistake that Okpagu was asked to pay N70,000.00 into the Respondent’s account. The Respondent submitted that the Appellant’s Claim that the Respondent did not stop the cheque, in the circumstances was an afterthought. The Respondent also submitted that it is normal in banking business in Nigeria (including that of the Appellant) that Banks contact their customers before payment of cheques which is above N10,000.00. That it is in evidence that this service had been extended in the past to him by the Appellant. The Appellant stated that the concession by the Appellant that it contacts high volume customers before paying out money from their accounts shows that the Appellant is not governed by mandate only. That this is the service the Respondent claims the Appellant has been rendering to him. Having cited the case of Salaudeen v. Mamman (2000) FWLR (pt.17) 1, 5, the Respondent submitted that evidence extracted during cross-examination from him and PW2 concerning publication of the status of his account to other to persons other than as pleaded in the Statement of Claim, went to no issue and should be expunged. The Respondent submitted that the approach of the Appellant in treating the issue of negligence as a separate head in respect of his claim is wrong as the duty of care the Appellant owes its customers includes handling of the customers’ affairs without negligence. That the language used by the learned trial Judge in expressing the act of the Appellant in handling the affairs of its customers once he has found for him (Respondent) is of no consequence. That the Judgment of the lower Court on its face is based squarely on the claim of the Respondent and not on negligence. That the use of “word “negligence” to describe the action of the Appellant should not result in the appeal being allowed as it is not every slip made by a lower Court that will result in an appeal being allowed. It is only those mistakes that have been shown to have affected or influence the decision appealed against, that will result in the appeal being allowed and the cases of Udeze v. Chidebe (1990) 2 NLWR (Pt.125) at 141; and Ezeoke v. Nwagbo (1988) 1 NWLR (Pt.72) 616 at 626 were cited in aid. The Respondent also submitted that what the Appellant has called contradictions in the evidence he adduced are nowhere near contradictions as known in law. Citing the case of Bassey v. State (2003) FWLR (Pt.164) 292 at 296, in respect of what constitutes contradiction, the Respondent submitted that there were no contradiction in the evidence he adduced at the trial and that even if there were, they were minor such that they had not occasioned any miscarriage of justice, which can be safely ignored by the Judge. That the learned trial Judge was right in treating the contradiction if any referred to in the evidence of PW1 as of no consequence and the case of Amayo v. State (2000) FWLR (pt.25) 1552 at 1554; and Ame v. The State (1978) 6-7 SC 27 were cited in aid.
In his Reply Brief, the Appellant stated that the learned trial Judge having found that crime was directly in issue in this case, the burden of proving that crime and every ingredient of it was on the Respondent who alleged it and cited the cases of Nwankwoala v. State (supra); and Nwobodo v. Onoh (1984) 1, in aid. Citing Section 36(5) of the 1999 Constitution, the Appellant also submitted that it is presumed innocent until proven guilty and it is not to be placed under the burden of providing any particular fact except imposed upon it by a law. That the argument of the Respondent that it has the burden of proving certain facts, even if true, (but which is not conceded) does not reduce the burden on the Respondent to prove the crime he has alleged. That as there was no direct or indirect evidence of crime attributable to it (Appellant), the learned trial Judge was bound to have dismissed the Respondent’s case. The Appellant submitted that Section 142 of the Evidence Act (supra) does not apply to it, in the instant case, because the material fact of the Respondent’s account balance before the cheque was presented was equally within the knowledge of the Respondent, Appellant and other third parties including Okpagu to whom Respondent himself disclosed the information concerning his account and the case of Joseph v. IGP (1957) NRNLR 170 was cited in aid. It is the submission of the Appellant that without filing an Appeal or Respondent’s Notice, the Respondent can neither argue as he had done in his Brief of Argument that the Appellant did not deny the allegation that it was normal practice with the Appellant to call the Respondent before honouring his cheque or to have asserted that it is normal banking practice in Nigeria for banks to call their customers before honouring their cheques. The case of Eliochi v. Mbadiwe (1986) 1 NWLR (pt.14) 47 was cited in aid. This is particularly so as no custom to that effect was found to apply in this case.
Dwelling on the allegation that telephoning a customer before honouring his cheque was normal banking practice in Nigeria at the material time i.e. on 9-4-98, the Court was urged to take judicial notice of the following facts: (i) at that time telephone services were being run solely by the State Parastatal NITEL; and (ii) telephone services were inefficient. That in the circumstances there could not have been any banking practice to call each customer before his cheque is honoured by his bank. Reliance was placed on Sections 73, and 74(1) (a) & (3) Evidence Act.
Dwelling on the case of Salaudeen v. Mamman (supra) cited by the Respondent, the Appellant submitted that the case was inapplicable to this case as the pieces of evidence sought to be expunged by the Respondent were duly pleaded and properly received in evidence and reference was made to paragraphs 6 of the Statement of Claim and paragraph 6 of the Amended Statement of Defence. It is the submission of the Appellant that one of the obvious ways of proving the denial pleaded in paragraph 6 of the amended Statement of Defence, is to show that there was no need to advise Okpagu of the Respondent’s account balance, because he and other persons who could also advise him knew it already. That by Order 9 Rule 4 of the Anambra State High Court (Civil Procedure) Rules 1988, which was then applicable in Enugu State, a Statement of Defence is only required to contain material facts and not the evidence by which that fact was to be proved. Furthermore, that Order 9 Rule 38 of the same rules provides that a Defendant, such as the Appellant is entitled to disprove any allegation made by a Plaintiff not admitted by the defence though not expressly set up in the defence. Dwelling on the case of Udeze v. Chidebe (1990) 3 NWLR (PT.125) 616 at 626, the Appellant submitted to the effect that the findings made by the learned trial Judge did not qualify as mere slips in Judgment, but basis of his decision.
I have purposely highlighted the submissions of the parties copiously as I intend to show later on, in the judgment that some of the submissions simply have no basis having regard to the pleadings, evidence and findings, as contained in the printed record as well as complaints in the Grounds Appeal.
The judgment of the lower Court runs from pages 145 – 165 of the record. All that the learned trial Judge did from page 145 – page 161 (first paragraph), was to review the evidence of the witnesses that testified in the case, as well as the written addresses of the parties. It is from the second paragraph on page 161 – page 165 that the learned trial Judge apparently made the findings upon which he predicated the decision entering judgment for the Respondent.
I have painstakingly perused the judgment of the lower Court and I do not see anywhere therein, the learned trial Judge formally set out the issue or issues nominated for decision having regard to the case of the Respondent. It would however appear that the learned trial Judge considered that the question as to whether or not the Appellant ought to have contacted the Respondent by phone before giving credit to the cheque he issued to Okpagu as arising for determination in the case, and that he clearly found that the Appellant was not under any duty in that regard. This is so in view of what the learned trial Judge stated at page 161 of the record to wit:
“On phoning the Plaintiff before payment of his cheque the Plaintiff was impressing on the Court to believe that the Defendant had to phone him before paying on his cheque. There was no written instruction from the Plaintiff to this effect besides Plaintiff signature or mandate cards do not contain such instruction.”
Despite this finding, the Respondent as it can be seen from his submissions that have hereinbefore been highlighted in this Judgment, still sought to justify the decision of the lower Court on ground that collusion was inferable from the failure of the Appellant to have contacted him. That this is particularly so as there was evidence before the lower Court that the Appellant employed the means in contacting its high profile customers before paying out money from their account as well as the existence of the practice or custom in the banking industry in Nigeria of Banks contacting their customers before paying out any cheque the value of which is over N10,000.00. I cannot but say that the Respondent in making the submissions, clearly appears not to appreciate the fact that the learned trial Judge by his finding re-produced above, had found the only “pleaded” means of communication between the Respondent and the Appellant for the purposes of clearing the Respondent’s cheques as having not been established. The Respondent in making the submissions in question would also appear to have clearly overlooked the fact that whether or not he is a high profile customer of the Appellant, is a matter of fact that ought to have been pleaded and evidence adduced in support of the same. Similarly, the alleged practice or custom of Banks contacting their customers before paying cheques of over N10,000.00 in value, should have been pleaded, if the Respondent intended to rely on the same in establishing that the Appellant did not act with due diligence concerning his cheque. Indeed the Appellant made submissions in this vein in its Reply Brief, and l am at one with the Appellant in this regard. The Respondent apparently took the stance mentioned above in order to justify what the learned trial Judge stated immediately after the portion of the judgment re-produced above to wit:
“But paying out N1,000,000.00 from his account to some other the defendant is expected to have confirmed from the plaintiff before paying it especially when that other person had to pay N70,000.00 to the account of the plaintiff.”
The Respondent in his Brief of Argument (and rightly so in my view) stated that the relation between him and the Appellant is based on contract (which in the con it was used means no more than agreement) and that the contract is one based on utmost good faith.
The duty imposed on a bank is clear in law. It is a duty to exercise reasonable care and skills and which extends over the whole range of banking business within the contract with the customer. See: STANDARD TRUST BANK LTD. v. ANUMNU [2008] 14 NWLR (PT.1106) 125. I am of the considered view that a bank which acts in accordance with the mandate in respect of a customer’s account, cannot be accused of not acting with due diligence. It is therefore most unclear to me and indeed I am dumbfounded or astonished, how the learned trial Judge having earlier found as it were that the Appellant was not under an obligation to phone the Respondent before giving value to his cheque, could in another breath have found to the effect that the Appellant was expected to have confirmed from the Respondent before paying out the cheque in question in the instant case. My astonishment is more compounded when it is appreciated that the learned trial Judge never made a finding as to “any other means” by which the Appellant should have contacted the Respondent, having initially found that the position of the Respondent that the Appellant was to phone him before giving credit to his cheque was not borne out by the evidence at the trial.
The learned trial Judge in his Judgment would appear to have also identified the issues nominated by the Respondent for resolution in the case to be (i) manipulation of the Respondent’s account; and (ii) divulging information pertaining to Respondent’s account. The learned trial Judge in his wisdom stated categorically that these are crimes and that crime was directly in issue. The Respondent is bound by this, as he has not appealed against the same. The learned trial Judge further (and rightly too, in my considered view), stated the law correctly in relation to the burden of proof required to establish an allegation of crime in a civil suit (as he found to be in issue in the instant case), namely, proof beyond reasonable doubt. Apparently in the bid to arrive at a finding as to whether or not the Respondent discharged the burden of proof (i.e. “proof beyond reasonable doubt”), (which the Respondent necessarily placed on himself going by the issues the learned trial Judge found his case to donate), the learned trial Judge stated thus at pages 163 – 164 of the record: –
“The Plaintiff is of the opinion that the Defendant made information of the status of the Plaintiff’s account available to Mr. Okpagu that enabled him pay N70,000.00 into the Plaintiff’s account and collected N1,000,000.00 at Onitsha the same day. Otherwise how did Mr. Okpagu know the amount of money to be paid into the Plaintiff’s account in order to cash N1,000,000.00 this must be the work of an insider in the bank.
This paying of N1,000,000.00 and N70,000.00 in fact raise a lot of question (sic) about the integrity of the bank, i.e. Defendant. How on earth and for what reason did Mr. Okpagu pay in N70,000.00 into the Plaintiff account. Did Mr. Okpagu pay the plaintiff into the account of the plaintiff before he withdrew the sum of N1,000,000.00? It is not clear for it happened the same day. It would appear that if you don’t have up to N70,000,00 you cannot make a cheque of up to N1,000,000.00.
The big question is how did Mr. Okpagu know this? Furthermore, who again other than the defendant knew of the plaintiff’s financial standing in the bank? Is it only the staff of the bank who knows? All these questions are begging for answers. In my own opinion I would think that the defendant, through its staff gave out the information to Mr. Okpagu. That it is only the bank or staff of the bank who knows of it and it was one or some of them who divulged information to Mr. Okpagu.”
The learned trial Judge without any indication as to the evidence he relied on in resolving all the questions he set out in the portion of the judgment re-produced above, proceeded to ask more questions and concluded thus:-
“All these financial transaction (sic) could not have been possible if the bank, i.e. the staff of the bank did not assist Mr. Okpagu. In my view, it appears to me that the defendant was negligent in handling the plaintiff account, and the defendant was in collusion with J. O. Okpagu. On the whole I prefer the evidence of the plaintiff to that of the defendant.”
It is in my considered view very clear from all that has been re-produced that the learned trial Judge predicated his conclusion that the Appellant was negligent in the handling of the Respondent’s account and was in collusion with Okpagu, because he found the Respondent to have discharged the burden of proof in respect of the allegations of crime which he stated to be directly in issue in the case. The Appellant has however submitted to the effect that the Respondent did not discharge the burden of proof in respect of the criminal allegations which the learned trial Judge found the Respondent to have nominated for determination, having regard to his case on the pleading. In this regard, the Appellant pointed it out that evidence elicited from PWs 1 and 2 under cross-examination glaring revealed that the Respondent by himself had furnished information about the status of his account to others including Okpagu before the date of the occurrence, in this case. The Appellant is clearly correct in this regard. Indeed the Respondent clearly conceded this much in his Brief of Argument. The Respondent however argued that “the evidence extracted during cross-examination of PW1 and PW2, established publication of Respondents (sic) account to other persons other than as pleaded in paragraphs 6, 7 & 8 of the Statement of Claim ought to be expunged”. This is because the evidence go to no issue not being in support of pleaded facts.
It is indeed a correct statement of law that evidence elicited or obtained in cross-examination in respect of or in relation to facts that have not been pleaded is inadmissible. See OKWEJIMINOR v. GBAKEJI [2008] All FWLR (Pt.409) 405. I am however of the considered view that the Respondent is clearly under a misapprehension concerning the purport of the evidence of publication of the status of his account to others as elicited under cross-examination of PWs 1 and 2 in the instant cases. The answer so elicited went to show that the case of the Respondent that Okpagu got information concerning the status of the Respondent’s account from the Appellant not to be irresistible from the circumstance of the case. One of the aims or objectives of cross-examination is to destroy or damage the case of an adversary; therefore, I am of the considered view that it was eminently proper for the Appellant to have cross-examined the Respondent’s witnesses with a view to showing that the status of his account was not known to the Appellant only. Aside from this, I am of the considered view that the answers elicited from PWs 1 and 2, concerning the publication by the Respondent of the status of his account to others, also went to support the case of the Appellant which simply put, is to the effect that it acted with due diligence in relation to the Respondent’s account.
Clearly, the learned trial Judge never gave the fact of the publication by the Respondent of the status of his account to others, any consideration in the portion of the judgment that has been re-produced hereinbefore, or in any other part of the judgment. Also, the learned trial Judge never resolved all or any of the questions he set out as agitating his mind, yet he apparently succeeded in finding the Respondent to have discharged the burden of proof, i.e. proof beyond reasonable doubt, (having regard to the issues which the learned trial Judge found the Respondent to have nominated for resolution in his case). This to say the least is most amazing.
It incontrovertible that there was no direct evidence concerning anything done wrong by the Appellant vis-a-vis Okpagu save the documentary evidence, establishing the clearance of the cheque which the Respondent issued to Okpagu. It is not the case of the Respondent that the Appellant wrongly gave him overdraft to enable the cheque to be given credit. The Appellant claimed that the account of the Respondent had sufficient fund to cover the cheque the Respondent issued. Documentary evidence before the lower court bears this out. Having incisively considered the evidence relied upon by the learned trial Judge in finding that the Respondent discharged the burden of proof on him, i.e. proof beyond reasonable doubt, I simply do not see the particular piece of evidence or pieces of evidence that irresistibly support the findings that the Appellant was negligent in the handling of the Respondent’s account and that it was in collusion with Okpagu. The Appellant has in my considered view demonstrated that the findings in these regard are perverse. I am at one with the Appellant on this, the findings of the learned trial Judge in question therefore must be set aside.
Flowing from all that has been said, Appellant’s Issue 1 necessarily must be and is hereby resolved in its favour.
WAS THE AWARD OF DAMAGES AND COST AGAINST THE APPELLANT IMPROPER AND/OR EXCESSIVE IN ALL THE CIRCUMSTANCES OF THIS CASE?
(Appellant’s Issue 3)
This Issue in my view requires no elaborate consideration given the resolution of Appellant’s Issue 1 in its favour. This is against the backdrop that the findings of the learned trial Judge that the Appellant was negligent in the handling of the Respondent’s account and that the Appellant was in collusion with Okpagu having been found to be preserve, the same cannot rightly be or form the basis of entering a verdict in favour of the Respondent and/or award of damages as done by the learned trial Judge. In any event, it would also appear that the damages awarded the Respondent and which was for the Appellant to pay Respondent back the sum of N1,000,000.00 is the only damages awardable giving the stance of the Respondent that the relationship between him and the Appellant is in contract. Even at that it is obvious that the learned trial Judge did not take into reckoning the fact that N70,000.00 out of the N1,000,000.00 is not the Respondent’s money. In other words even if the award of damages to the Respondent had been right, (and this is not conceded), it was wrong of the learned trial Judge to have awarded the Respondent any sum in general damages. All he should have been awarded is the sum of N1,000,000.00 less N70,000.00 paid into the Respondent’s account by Okpagu, it being the loss directly flowing from whatever act of commission or omission the Appellant committed in relation to the Respondent’s account. Appellant’s Issue 3 in the circumstances must be and is hereby resolved in its favour.
In the final analysis, the appeal is meritorious given the success of Appellant’s Issues 1 and 3, and is hereby allowed. Accordingly the Judgment of the lower Court delivered on 12/11/2007 is set aside. In its place, Judgment is hereby entered dismissing the case of the Respondent (plaintiff).
Costs in the sum of N20,000.00 is awarded in favour of the Appellant and against the Respondent.
ADAMU JAURO, J.C.A.: I have had the Privilege of reading before now the lead Judgment prepared by my learned brother A. O. Lokulo-Sodipe, J.C.A.
Having accorded ample consideration and overview of the case and the submissions made therein by respective Counsel, I am in complete agreement with the lead Judgment. I adopt the reasoning and conclusion as mine.
Consequent upon the foregoing and without any hesitation, I hold that the Appeal is meritorious and same is hereby allowed by me. The Judgment of the lower Court delivered on 12/11/07 is set aside and an order is hereby made dismissing the Respondent’s (Plaintiff’s) case. I abide by all the consequential orders made, including that of costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I was accorded the privilege of a preview of the Judgment just delivered by my learned brother, LOKULO-SODIPE, JCA.
I agree with his reasoning and conclusion that this Appeal be allowed.
I also make my order in that direction.
I abide by the order as to costs.
Appeal allowed.
Appearances
R. U. EzeaniFor Appellant
AND
A. C. OnwuFor Respondent
